EXHIBIT 4.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective as of June 1, 2003, between PNC Bank, National Association, a
national banking association ("PNC"), as seller (in such capacity, together with
its successors and permitted assigns hereunder, the "Seller"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
PNC desires to sell, assign, transfer, set over and otherwise convey
to CSFB Mortgage Securities, without recourse, and CSFB Mortgage Securities
desires to purchase, subject to the terms and conditions set forth herein, the
multifamily and commercial mortgage loans (collectively, the "Mortgage Loans")
identified on the schedule annexed hereto as Exhibit A (the "Mortgage Loan
Schedule"), as such schedule may be amended from time to time pursuant to the
terms hereof.
CSFB Mortgage Securities intends to create a trust (the "Trust"),
the primary assets of which will be a segregated pool of multifamily and
commercial mortgage loans that includes the Mortgage Loans. Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., Fitch,
Inc. and Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). The
Trust will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement dated as of June 1, 2003 (the "Pooling and Servicing
Agreement"), among CSFB Mortgage Securities as depositor, KeyCorp Real Estate
Capital Markets, Inc., as master servicer of the mortgage loans other than those
contributed to the Trust Fund by NCB, FSB, ARCap Servicing, Inc., as special
servicer of mortgage loans that are not residential cooperative mortgage loans,
NCB, FSB, as master servicer of the mortgage loans contributed to the Trust Fund
by NCB, FSB, National Consumer Cooperative Bank, as special servicer of the
residential cooperative mortgage loans, and Xxxxx Fargo Bank Minnesota, N.A., as
trustee. Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that CSFB Mortgage Securities will transfer the Mortgage Loans
to the Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "Publicly Offered Certificates") to Credit
Suisse First Boston LLC ("CSFB LLC") and the other underwriters named in the
Underwriting Agreement (as defined below) (collectively in such capacity, the
"Underwriters"), pursuant to an underwriting agreement dated as of June 17, 2003
(the "Underwriting Agreement"), among CSFB Mortgage Securities and the
Underwriters, and CSFB Mortgage Securities intends to sell certain classes of
the remaining Certificates (the "Privately Offered Certificates") to CSFB LLC,
pursuant to a certificate purchase agreement dated as of June 17, 2003 (the
"Certificate Purchase Agreement"), between CSFB Mortgage Securities and CSFB
LLC. The Publicly Offered Certificates are more fully described in a prospectus
dated June 3, 2003 (the "Base Prospectus"), and the supplement to the Base
Prospectus dated June 17, 2003 (the "Prospectus Supplement" and, together with
the Base Prospectus, the "Prospectus"), as each may be amended or supplemented
with the express written consent of the Seller at any time hereafter. The
Privately Offered Certificates are more fully described in a confidential
offering circular dated June 17, 2003 (the "Confidential Offering Circular"), as
it may be amended or supplemented with the express written consent of the Seller
at any time hereafter.
PNC will indemnify CSFB Mortgage Securities, CSFB LLC, the other
Underwriters and certain related parties with respect to the disclosure
regarding the Mortgage Loans contained in the Prospectus, the Confidential
Offering Circular and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated as
of June 17, 2003 (the "Indemnification Agreement"), among PNC, CSFB Mortgage
Securities, CSFB LLC, both as an Underwriter and as initial purchaser of the
Privately Offered Certificates, and the other Underwriters.
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, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the Seller's
transfer of the related servicing rights as provided in the Servicing Rights
Purchase Agreement dated as of June 1, 2003 (the "Servicing Rights Purchase
Agreement") between the Seller and the applicable Master Servicer and subject to
the terms and conditions set forth herein, the Mortgage Loans. The purchase and
sale of the Mortgage Loans shall take place on June 27, 2003 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the close of business on the respective Due Dates for the Mortgage Loans in
June 2003 (individually and collectively, the "Cut-off Date"), the Mortgage
Loans will have an aggregate principal balance, after application of all
payments of principal due on the Mortgage Loans on or before the Cut-off Date,
whether or not received, of $[___________], subject to a variance of plus or
minus 5%. The purchase price for the Mortgage Loans shall consist of cash in the
amount specified in the Settlement Statement (as defined in Section 8 hereof),
which cash amount includes accrued interest on the Mortgage Loans at their
respective Mortgage Rates from and including June 1, 2003 to but not including
the Closing Date, and which cash amount the Purchaser shall pay to the Seller on
the Closing Date by wire transfer in immediately available funds to an account
designated by the Seller or by such other method as shall be mutually acceptable
to the parties hereto.
Section 2. Conveyance of the Mortgage Loans. (a) Effective as of the
Closing Date, subject only to receipt of the purchase price referred to in
Section 1 hereof and the satisfaction of the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, subject to the Seller's transfer of
the related servicing rights as provided in the Servicing Rights Purchase
Agreement, without recourse, all of the right, title and interest of the Seller
in and to the Mortgage Loans, including all interest and principal received on
or with respect to the Mortgage Loans after the Cut-off Date (other than
scheduled payments of interest and principal due on or before the Cut-off Date),
together with all of the right, title and interest of the Seller in and to the
proceeds of any related title, hazard or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or its designee the Mortgage File and any
Additional Collateral (other than reserve funds and escrow payments) with
respect to each Mortgage Loan. In addition, with respect to each Mortgage Loan,
as to which any Additional Collateral is in the form of a Letter of Credit as of
the Closing Date, the Seller shall cause to be prepared, executed and delivered
to the issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to, and vest in, the Trustee (whether by actual assignment or by
amendment of the Letter of Credit) the Seller's rights as the beneficiary
thereof and drawing party thereunder. The designated recipient of the items
described in the second preceding sentence, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded or filed document or original policy of title insurance which
is to be delivered as part of the related Mortgage File for any Mortgage Loan
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded or filed document has not been
returned by the appropriate recording or filing office or such original policy
of title insurance has not yet been issued, then the Seller shall deliver such
documents to the Purchaser or its designee, promptly upon the Seller's receipt
thereof.
In addition, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser, the
applicable Master Servicer or its designee, within three (3) Business Days after
the Closing Date, the following items (except to the extent that any of the
following items are to be retained by a servicer or subservicer that will
continue to act on behalf of the Purchaser or its designee): (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (except with respect to loans secured by residential
cooperative properties), third-party underwriting reports, insurance policies,
legal opinions, tenant estoppels and any other documents that the Purchaser or
its servicing agent reasonably deems necessary to service the subject Mortgage
Loan in the possession or under the control of the Seller that relate to the
Mortgage Loans, copies of all documents required to be delivered by the Seller
to the Purchaser or its designee as a part of a Mortgage File and, to the extent
they are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans (provided that the Seller shall not be required to deliver any
attorney-client privileged communication or any other documents or materials
prepared by or for the Seller or its Affiliates solely for internal credit
analysis and/or other internal uses other than the underwriting model contained
in the related underwriting memorandum or asset summary report prepared by the
Seller and provided to Ernst & Young, LLP in connection with the preparation of
Exhibit A-1 to the Prospectus Supplement); and (ii) all unapplied reserve funds
and escrow payments in the possession or under the control of the Seller that
relate to the Mortgage Loans. The designated recipient of the items described in
clauses (i) and (ii) of the preceding sentence shall be the applicable Master
Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related Borrower,
to be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this Section 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this Section 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c),
the Seller is a designated recipient, or shall otherwise be the beneficiary, of
all certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that, subject to the next paragraph,
the Seller shall not be responsible for actually recording or filing any such
assignments or other instruments of transfer. If the Seller receives written
notice that any such assignment or other instrument of transfer is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare or cause the preparation of a substitute therefor or
cure such defect, as the case may be; provided that the cost of such preparation
shall be borne by the Purchaser if the loss or return is caused by the
Purchaser's negligence. The Seller shall provide the Purchaser or its designee
with a power of attorney to enable it or them to record any loan documents that
the Purchaser has been unable to record. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipients of the power of
attorney referred to in the preceding sentence shall be the Trustee.
Notwithstanding the immediately preceding paragraph, the Seller may,
at its sole cost and expense, engage a third-party contractor to prepare or
complete in proper form for filing and recording any and all of the assignments
and other instruments described in the immediately preceding paragraph,
including assignments of UCC Financing Statements, with respect to the Mortgage
Loans, to submit such assignments and instruments for filing and recording, as
the case may be, in the applicable public filing and recording offices and to
deliver such assignments and instruments to the Trustee or its designee as such
assignments and other instruments (or certified copies thereof) are received
from the applicable filing and recording offices with evidence of such filing
and recording indicated thereon. However, in the event the Seller engages a
third-party contractor as contemplated in the immediately preceding sentence,
the rights, duties and obligations of the Seller pursuant to this Agreement
shall remain binding on the Seller.
(e) Upon the sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall, under generally accepted accounting principles ("GAAP"),
report its transfer of the Mortgage Loans to the Purchaser, as provided herein,
as a sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the foregoing,
upon the sale of Certificates representing at least 10% of the total principal
balance of all the Certificates to unaffiliated third parties, the Seller shall
cause all of its financial and accounting records to reflect such transfer as a
sale (as opposed to a secured loan). The Seller shall at all times following the
Closing Date cause all of its records and financial statements and any relevant
consolidated financial statements of any direct or indirect parent to clearly
reflect that the Mortgage Loans have been transferred to the Purchaser and are
no longer available to satisfy claims of the Seller's creditors.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
Section 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
(subject, however, to Section 5(d)).
Section 4. Representations, Warranties and Covenants of the Seller
and the Purchaser. (a) The Seller hereby makes, as of the date hereof, and shall
make as of the Closing Date, to and for the benefit of the Purchaser, each of
the representations and warranties set forth in Exhibit B-1. The Purchaser
hereby makes, as of the date hereof, and shall make as of the Closing Date, to
and for the benefit of the Seller, each of the representations and warranties
set forth in Exhibit B-2.
(b) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
and shall make as of the Closing Date (or as of such other date specifically
provided in the particular representation or warranty), to and for the benefit
of the Purchaser, with respect to each Mortgage Loan, each of the
representations and warranties set forth in Exhibit C, subject, however, to the
exceptions set forth in Schedule C-1 and Section 18.
(c) The Seller hereby represents and warrants, as of the date
hereof, and shall represent and warrant, as of the Closing Date, to and for the
benefit of CSFB Mortgage Securities only, that the Seller has not dealt with any
broker, investment banker, agent or other person (other than the CSFB Mortgage
Securities, CSFB LLC and the other Underwriters) who may be entitled to any
commission or compensation in connection with the sale to the Purchaser of the
Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser, with respect
to any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a Defective Mortgage Loan (as defined in Section 5(a) hereof),
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C (references therein to "Closing Date" being
deemed to be references to the "date of substitution", references therein to
"Cut-off Date" being deemed to be references to the "most recent Due Date for
the subject Replacement Mortgage Loan on or before the date of substitution" and
references to "June 2003" and "May 2003" being deemed to be references to the
"month of substitution" and the "month preceding the month of substitution",
respectively). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser for so long as any of the Mortgage
Loans remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
Section 5. Notice of Breach; Cure, Repurchase and Substitution. (a)
The Purchaser or its designee shall provide the Seller with written notice of
any Material Breach or Material Document Defect with respect to any Mortgage
Loan. Within 90 days of the earlier of discovery or receipt of written notice by
the Seller (including, without limitation, written notice from any party to the
Pooling and Servicing Agreement) that there has been a Material Breach or
Material Document Defect with respect to any Mortgage Loan (or, if such Material
Breach or Material Document Defect, as the case may be, relates to whether such
Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement
Mortgage Loan, as of the related date of substitution), was a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), and provided that such Seller received prompt written notice
thereof, within 90 days after any earlier discovery by any party to the Pooling
and Servicing Agreement of such Material Breach or Material Document Defect, as
the case may be) (such 90-day period, in any case, the "Initial Resolution
Period"), the Seller shall, subject to Section 5(b) and Section 5(c) below, (i)
correct or cure such Material Breach or Material Document Defect, as the case
may be, in all material respects or (ii) repurchase the Mortgage Loan affected
by such Material Breach or Material Document Defect, as the case may be (such
Mortgage Loan, a "Defective Mortgage Loan"), at the applicable Purchase Price,
with payment to be made in accordance with the reasonable directions of the
applicable Master Servicer; provided that if the Seller shall have delivered to
the Trustee a certification executed on behalf of the Seller by an officer
thereof stating (i) that such Material Breach or Material Document Defect, as
the case may be, does not relate to whether the Defective Mortgage Loan is or,
as of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of
the related date of substitution), was a Qualified Mortgage, (ii) that such
Material Breach or Material Document Defect, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
the Seller has commenced and is diligently proceeding with the cure of such
Material Breach or Material Document Defect, as the case may be, within the
applicable Initial Resolution Period, (iv) what actions the Seller is pursuing
in connection with the cure thereof and (v) that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 more days, then the Seller
shall have an additional 90 days following the end of the Initial Resolution
Period (such additional 90-day period, the "Resolution Extension Period") to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, then the Seller may, at its option, subject to the terms, conditions
and limitations set forth in the Pooling and Servicing Agreement, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. Neither the Seller nor the Trustee
shall have any obligation to monitor the Mortgage Loans regarding the existence
of a Material Breach or Material Document Defect, but if the Seller discovers a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
it will notify the Trustee. The Seller acknowledges the rights of the applicable
Master Servicer and Special Servicer under Section 2.03 of the Pooling and
Servicing Agreement to enforce the repurchase/substitution obligations of the
Seller under this Section 5(a), on behalf of the Trustee for the benefit of the
Certificateholders.
Whenever one or more mortgage loans are substituted by the Seller
for a Defective Mortgage Loan as contemplated by this Section 5(a), the Seller
shall (i) deliver the related Mortgage File for each such substitute mortgage
loan to the Purchaser or its designee (which designee, unless otherwise stated,
is the Trustee), (ii) certify that such substitute mortgage loan satisfies or
such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure in all material respects of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust on or prior to the related date of repurchase or replacement, shall belong
to the Trust Fund. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) on or prior to the related date of substitution, and
Monthly Payments due with respect to each Defective Mortgage Loan (if any) after
the related date of repurchase or replacement, and received by the applicable
Master Servicer or the applicable Special Servicer on behalf of the Trust, shall
belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the applicable Master Servicer.
The remedies provided for in this Section 5(a) with respect to any
Material Breach or Material Document Defect as to any Mortgage Loan shall also
apply to any related REO Property.
(b) If one or more (but not all) of the Mortgage Loans constituting
a Cross-Collateralized Group (as defined in Section 18) are to be repurchased or
replaced by the Seller as contemplated by Section 5(a), then, prior to the
subject repurchase or substitution, the applicable Master Servicer or its
designee shall use its reasonable efforts, subject to the terms of such Mortgage
Loans, to prepare and, to the extent necessary and appropriate, have executed by
the related Borrower and record, such documentation as may be necessary to
terminate the cross-collateralization between the Mortgage Loans in such
Cross-Collateralized Group that are to be repurchased or replaced, on the one
hand, and the remaining Mortgage Loans therein, on the other hand, such that
those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto (as to each such group, the "Primary Real Property Collateral");
provided that no such termination shall be effected unless (i) the Mortgage Loan
or Mortgage Loans from such Cross-Collateralized Group that are to remain with
the Trust Fund have a debt service coverage ratio that is not less than the
greater of (A) the debt service coverage ratio of the Cross-Collateralized
Group, as a collective whole, immediately prior to such repurchase or
replacement and (B) 1.25x and (ii) the loan-to-value ratio with respect to the
Mortgage Loan or Mortgage Loans from such Cross-Collateralized Group that are to
remain with the Trust Fund after the repurchase or replacement of the Defective
Mortgage Loan or Mortgage Loans is not greater than the lesser of (A) the
loan-to-value ratio of the Cross-Collateralized Group, as a collective whole,
immediately prior to such repurchase or replacement and (B) 75%; and provided,
further, that, if the affected Cross-Collateralized Group is then subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until the Trustee and the applicable Master Servicer shall have
received from the Seller (i) an Opinion of Counsel from independent counsel
addressed to the Trustee and the applicable Master Servicer to the effect that
such termination will not cause an Adverse REMIC Event to occur with respect to
any REMIC or an Adverse Grantor Trust Event with respect to any Grantor Trust,
and (ii) written confirmation from each Rating Agency that such termination will
not cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Seller may, at its option,
purchase or replace the entire subject Cross-Collateralized Group in lieu of
terminating the cross-collateralization. All costs and expenses incurred by the
Trustee and the applicable Master Servicer and its servicing agents pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased or replaced.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Seller's failure to satisfy any
of the conditions set forth in the provisos to the first sentence of the prior
paragraph), and if the Seller has not elected to purchase the entire affected
Cross-Collateralized Group, then, for purposes of this Section 5, including for
purposes of (i) determining whether the particular Breach or Document Defect
that gave rise to the repurchase/substitution obligation for such
Cross-Collateralized Group is a Material Breach or Material Document Defect, as
the case may be, and (ii) the application of remedies, such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
(c) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to Section 5(a) that the
Purchaser (which shall include the Trustee) shall have executed and delivered
such endorsements and instruments of release, transfer and/or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related Mortgage
Loan Documents, to the extent that such ownership interest was transferred to
the Purchaser hereunder.
(d) It is understood and agreed that the obligations of the Seller
set forth in this Section 5 to cure a Material Breach or a Material Document
Defect, or to repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser, the Certificateholders
or the Trustee on behalf of the Certificateholders with respect to a Breach or
Document Defect in respect of any Mortgage Loan; provided that there is no
limitation on the part of the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders, or any person or entity acting on its or
their behalf, with regard to enforcing such repurchase or replacement
obligations or suing for damages in the event of a breach of such repurchase or
replacement obligations.
Section 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of each of the Seller
and the Purchaser made pursuant to Section 4 of this Agreement (subject,
in the case of the Seller, to the exceptions set forth in Schedule C-1
hereto) shall be true and correct in all material respects as of the
Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the Seller
hereunder) and other documents to be delivered by or on behalf of the
Purchaser, to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser
or its designee, all documents, funds and other assets required to be
delivered thereto on or before the Closing Date pursuant to Section 2 of
this Agreement;
(iv) the result of any examination of the Mortgage Files for, and
any other documents and records relating to, the Mortgage Loans performed
by or on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) 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 by it after the Closing Date;
(vi) the Seller shall have received the consideration for the
Mortgage Loans, as contemplated by Section 1;
(vii) the Seller shall have paid, or made arrangements satisfactory
to the Purchaser to pay, all fees and expenses payable by it to the
Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable 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 7. Closing Documents. The Closing Documents shall consist
of the following:
(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) an Officer's Certificate in form and substance reasonably
acceptable to CSFB Mortgage Securities, CSFB LLC, the other Underwriters
and the Rating Agencies (collectively, for purposes of this Section 7, the
"Interested Parties"), executed by the Secretary or an assistant secretary
of the Seller, in his or her individual capacity on behalf of the Seller,
and dated the Closing Date, and upon which the Interested Parties may
rely, attaching thereto as an exhibit the By-Laws of the Seller;
(iv) a certificate of corporate existence from Comptroller of
Currency not earlier than 120 days prior to the Closing Date, and upon
which the Interested Parties may rely;
(v) a Certificate of the Seller in form and substance reasonably
acceptable to the Interested Parties, executed by an executive officer of
the Seller on the Seller's behalf and dated the Closing Date, and upon
which the Interested Parties may rely, which sets forth that the
representations and warranties of the Seller in this Agreement and the
Indemnification Agreement are true and correct in all material respects as
of the Closing Date, subject to the exceptions set forth in Schedule C-1
and Section 18;
(vi) a written opinion or opinions of counsel for the Seller (which
may include an opinion of in-house counsel), dated the Closing Date and
addressed to the Interested Parties and the respective parties to the
Pooling and Servicing Agreement, which opinions shall be in form and
substance reasonably acceptable to the addressees;
(vii) a letter from Xxxxxxx Xxxxxxxx Xxxxxx LLP special counsel for
the Seller, dated the Closing Date and addressed to CSFB Mortgage
Securities, CSFB LLC and the other Underwriters, which letter shall be in
form and substance reasonably acceptable to the recipient;
(viii) one or more comfort letters from Ernst & Young LLP, certified
public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed
to, and in form and substance acceptable to, CSFB Mortgage Securities,
CSFB LLC, the other Underwriters and their respective counsel, stating in
effect that, using the assumptions and methodology used by CSFB Mortgage
Securities, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the
corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results
of such calculations;
(ix) such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date or any Rating
Agency may require and in a form reasonably acceptable to the Purchaser
and the Seller;
(x) a written certificate or certificates of the Purchaser dated the
Closing Date in form and substance reasonably acceptable to the Seller
confirming the Purchaser's representations and warranties in Section 4 of
this Agreement as of the Closing Date, with resolutions of the Purchaser
authorizing the transactions set forth herein, together with copies of the
organizational documents and certificate of good standing dated not
earlier than 30 days prior to the Closing Date of the Purchaser; and
(xi) such other certificates of the Purchaser's officers, such
opinions of the Purchaser's counsel (which may include in-house counsel)
and such other documents required to evidence its fulfillment of the
conditions set forth in this Agreement as the Seller or its counsel may
reasonably request.
Section 8. Costs. Whether or not this Agreement is terminated,
except to the extent otherwise specifically provided in this Agreement, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement statement
dated the Closing Date as mutually agreed upon between the Seller and the
Purchaser (the "Settlement Statement").
Section 9. Notices. All demands, notices and communications
hereunder shall be in writing, and shall be deemed to have been duly given if
personally delivered, mailed, by registered mail, postage prepaid, delivered by
overnight mail or courier service, or transmitted by facsimile and confirmed to
the sender and (a) if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx,
Telecopy No.: (000) 000-0000, or such other address as may be designated by the
Purchaser to the Seller in writing, or (b) if to the Seller, addressed to the
Seller at 10851 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries),
and X.X. Xxx 00000 Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for communications by
United States mail), Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a
copy to PNC Bank, National Association, One PNC Plaza, 21st Floor, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxx,
Telecopy No.: (000) 000-0000 or such other address as may be designated by the
Seller to the Purchaser in writing.
Section 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts (and by
each of the parties hereto on different counterparts), each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, and no other person will have any right or
obligation hereunder. Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the written
consent of the Seller.
Section 11. Characterization. The parties hereto agree that it is
their express intent that the conveyance contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority 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(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related 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 under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement. In connection with the
foregoing, the Seller authorizes the Purchaser to execute and file such UCC
financing statements as the Purchaser may deem necessary or appropriate to
accomplish the foregoing.
Section 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
the Seller delivered 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, notwithstanding any restrictive or qualified endorsement or
assignment in respect of any Mortgage Loan.
Section 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or 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 is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
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. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates, subject to all
limitations herein contained, including those set forth in Section 5 of this
Agreement. Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall have no authority or right to assign or transfer its rights and
obligations under this Agreement, in whole or in part, to any other Person
(other than a successor Trustee), regardless of whether such assignment or
transfer is made in connection with the transfer of any Mortgage Loan by the
Trust as contemplated by the terms of the Pooling and Servicing Agreement or
otherwise. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of and be enforceable by the Seller and the Purchaser, and their
respective successors and permitted assigns.
Section 17. Information. The Seller shall, for the purpose of
facilitating the issuance and sale of the Certificates by CSFB Mortgage
Securities, provide the Purchaser with such information about the Seller, the
Mortgage Loans and the Seller's underwriting and servicing procedures as is (i)
customary in commercial mortgage loan securitization transactions, (ii) required
by a Rating Agency or a governmental agency or body or (iii) reasonably
requested by the Purchaser for use in a public or private disclosure document.
Section 18. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
Section 19. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
* * *
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Exhibit A
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
PNC Loans
[See Attached Schedule]
SCHEDULE OF PNC MORTGAGE LOANS
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Combined Collateral
----------------- ------------------------
(i) (viii) (xix) (ii)
----------------- ------------------------
----------------- ------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan
# Crossed Yes/No Property Name Address
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
10 Orchards Corporate Center 27725 and 00000 Xxxxxxxxx Xxxxxxxxx
14 Inland Empire Portfolio
15 Xxxxxxx Business Center
22 Silverado Apartments 0000 Xxxxxxxxxx Xxxxxxx
23 Stonebridge Waterfront Apartments 0000 Xxxxxxx Xxxxxx
25 Honeywell International Building 0000x Xxxxxxxx Xxxxx
28 The Seasons Apartments 6969 Hollister
37 Emerald Ridge Apartment 3400 Varsity Drive
42 6828 Xxxxx Xxxxx Drive 6828 Xxxxx Xxxxx Drive
43 Metaldyne Industrial III Portfolio
00 Xxxxxxxxxxx Xxxxx Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxxxx Xxxx
81 The MEMEC Xxxxxxxx 000 Xxxxxxxxx Xxxxx
82 Campus View Center 0000 Xxxxxxx Xxxxxx and 0000 Xxxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxx X Xxxxxx and 0000 Xxxxx X Xxxxxx
107 Whole Foods Market Phase II 0000 Xxxx 00xx Xxxxxx
112 Heritage Oaks Apartment 3506 Manchaca Road
000 Xxxxx Xxxx Xxxxxxxxxx 00-X Xxxxx Xxxxxx
000 Ralph's Grocery Store 000 Xxxxx Xx Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxx Xxxxxxxxx 0000 Xxxxx Xxxxxxxxx Court
149 ParkRidge at XxXxxxxxx 0000 Xxxxx Xxxx Xxxxxx
184 ParkRidge of Monticello 000 Xxxxxx Xxxxxx
000 The Veranda at Twin Creek Apartments 0000 Xxxx Xxxxx Xxxxx
198 Xxxxxx Colorado Apartments
-----------------------------------------------------------------------------------------------------------------------
(xxiii) (ix)
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Zip Property Property Cooperative
# City County State Code Type Sub-type Yes/No
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xx
00 Xx
00 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxxxxx Xxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxx Xxxxx XX 00000 Multifamily Conventional No
00 Xxx Xxxxx Xxx Xxxxx XX 00000 Industrial X/X Xx
00 Xx
00 Xxxxxxxx Xxxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxx Xxxxxx XX 00000 Industrial N/A No
82 Cypress Xxxxxx XX 00000 Retail Unanchored No
00 Xxxx Xxxxx Xxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Retail Anchored No
000 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxx Xxx Xxxxxxx XX 00000 Retail Anchored No
000 Xxxx Xxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 XxXxxxxxx XxXxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxx XX 00000 Multifamily Conventional No
000 Xxxxxxx Xxxx XX 00000 Multifamily Conventional No
198 No
-------------------------------------------------------------------------------
(xiv) (xiii) (iii) (xxii)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Percentage of
Mortgage Mortgage Original Cut-off Initial
# Originator Loan Seller Balance Balance Pool Balance
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
10 PNC PNC $30,000,000 $29,973,130 1.74%
14 PNC PNC $25,875,000 $25,875,000 1.50%
15 PNC PNC $24,040,000 $24,040,000 1.39%
22 PNC PNC $17,000,000 $16,963,392 0.98%
23 PNC PNC $16,000,000 $15,955,809 0.93%
25 PNC PNC $12,000,000 $11,934,999 0.69%
28 PNC PNC $10,500,000 $10,479,919 0.61%
37 PNC PNC $9,050,000 $9,012,255 0.52%
42 PNC PNC $7,175,000 $7,126,738 0.41%
43 PNC PNC $7,140,000 $7,079,489 0.41%
52 PNC PNC $6,450,000 $6,438,068 0.37%
81 PNC PNC $4,600,000 $4,579,174 0.27%
82 PNC PNC $4,500,000 $4,496,492 0.26%
90 PNC PNC $4,200,000 $4,192,091 0.24%
107 PNC PNC $3,400,000 $3,397,070 0.20%
112 PNC PNC $3,100,000 $3,087,408 0.18%
113 PNC PNC $3,050,000 $3,050,000 0.18%
137 PNC PNC $2,250,000 $2,248,135 0.13%
141 PNC PNC $2,160,000 $2,151,226 0.12%
149 PNC PNC $2,023,000 $2,019,834 0.12%
184 PNC PNC $1,385,000 $1,384,048 0.08%
185 PNC PNC $1,377,000 $1,373,542 0.08%
198 PNC PNC $1,200,000 $1,196,728 0.07%
-------------------- -------------------------------------------------------------------------------
(xii) (vii) (vi) (v) (xvii) (xv)
-------------------- -------------------------------------------------------------------------------
-------------------- -------------------------------------------------------------------------------
Initial Orig Rem. Orig Rem.
Fee/ Interest Only Amort. Amort. Term to Term to Interest Grace Interest Calculation
# Leasehold Term Term Term Maturity Maturity Rate Days (30/360 / Actual/360)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
10 Fee 0 360 359 120 119 5.7000% 5 Actual/360
14 12 360 360 84 81 5.4000% 5 Actual/360
15 0 360 360 60 60 5.2000% 5 Actual/360
22 Fee 0 360 358 60 58 5.2500% 5 Actual/360
23 Fee/Leasehold 0 360 357 120 117 5.8500% 5 Actual/360
25 Fee 0 360 354 120 114 6.2500% 5 Actual/360
28 Fee 0 360 358 120 118 5.8000% 5 Actual/360
37 Fee 0 360 356 120 116 5.8000% 5 Actual/360
42 Fee 0 360 351 120 111 7.1500% 5 Actual/360
43 0 240 236 120 116 6.2500% 5 Actual/360
52 Fee 0 360 358 120 118 5.9500% 5 Actual/360
81 Fee 0 360 355 120 115 6.3500% 5 Actual/360
82 Fee 0 360 359 120 119 6.2300% 5 Actual/360
90 Fee 0 360 358 120 118 5.8700% 5 Actual/360
107 Fee 0 360 359 120 119 5.8500% 5 Actual/360
112 Fee 0 360 356 120 116 5.9400% 5 Actual/360
113 Fee 0 360 360 120 120 5.9000% 7 Actual/360
137 Fee/Leasehold 0 360 359 120 119 6.0000% 5 Actual/360
141 Fee 0 360 356 120 116 5.9400% 5 Actual/360
149 Fee 0 360 358 180 178 6.6800% 5 Actual/360
184 Fee 0 360 359 180 179 6.6800% 5 Actual/360
185 Fee 0 360 355 216 211 9.0200% 5 Actual/360
198 0 300 298 120 118 6.0000% 5 Actual/360
----------------------------------------------------------------------------------------------------------------------------------
(iv) (x) (xi) (xvi)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Servicing
First and
Monthly Payment Trustee
# Payment Date ARD Defeasance Defeasance Provision Fees
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
10 $174,120 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.11137%
14 $145,296 4/1/2003 N/A Yes Lock/36_Def/44_0.0%/4 0.11137%
15 $132,006 7/1/2003 N/A Yes Lock/36_Def/20_0.0%/4 0.11137%
22 $93,875 5/1/2003 N/A Yes Lock/36_Def/20_0.0%/4 0.10137%
23 $94,391 4/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
25 $73,886 1/1/2003 N/A Yes Lock/36_Def/77_0.0%/7 0.13137%
28 $61,609 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
37 $53,101 3/1/2003 N/A No N/A 0.11137%
42 $48,460 10/1/2002 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
43 $52,188 3/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
52 $38,464 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
81 $28,623 2/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
82 $27,649 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
90 $24,831 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.18137%
107 $20,058 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
112 $18,467 3/1/2003 N/A No N/A 0.13137%
113 $18,091 7/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
137 $13,490 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.10137%
141 $12,867 3/1/2003 N/A No N/A 0.13137%
149 $13,027 5/1/2003 N/A Yes Lock/36_Def/140_0.0%/4 0.18137%
184 $8,919 6/1/2003 N/A Yes Lock/36_Def/140_0.0%/4 0.18137%
185 $11,099 2/1/2003 N/A Yes Lock/36_Def/176_0.0%/4 0.08137%
198 $7,732 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
----------------
(xxi)
----------------
----------------
Contractual
Engineering Recurring LC & TI Contractual Tax &
Reserve at Replacement Reserve at Recurring Insurance
# Recourse Origination Reserve/FF&E Origination LC&TI Escrows
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
10 No N/A $43,215 X/X X/X Xxxx
00 Xx X/X $51,386 $500,000 $150,000 Both
15 No $31,398 $58,128 N/A $165,000 None
22 No N/A $83,000 X/X X/X Xxxx
00 Xx X/X $39,750 N/A N/A Both
25 No $33,125 $16,657 N/A $196,774 None
28 No N/A $54,000 N/A N/A Both
37 No $715,800 $121,008 X/X X/X Xxxx
00 Xx X/X $8,440 $469,075 $75,000 Both
43 No N/A N/A N/A N/A None
52 No N/A $9,460 N/A $30,000 Both
81 No N/A $9,558 $100,000 $50,000 Both
82 No $19,625 $6,068 $30,000 $18,000 Both
90 No $50,938 $38,480 X/X X/X Xxxx
000 Xx X/X $2,185 N/A $20,000 Both
112 No N/A $25,750 X/X X/X Xxxx
000 Xx X/X $12,000 X/X X/X Xxxx
000 Xx X/X X/X X/X $30,000 None
141 No N/A $12,500 X/X X/X Xxxx
000 Xx X/X $18,000 X/X X/X Xxxx
000 Xx X/X $16,000 X/X X/X Xxxx
000 Xx X/X $18,920 X/X X/X Xxxx
000 Xx X/X $10,568 N/A N/A Both
Initial Initial other Contractual Contractual
Other Reserve Other Other Reserve
# Reserve Description Reserve Description
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
10 X/X X/X X/X X/X
00 X/X X/X X/X N/A
15 $12,925 Outstanding Issues Escrow N/A N/A
22 N/A N/A N/A N/A
23 N/A N/A N/A N/A
25 N/A N/A N/A N/A
28 N/A N/A X/X X/X
00 X/X X/X X/X X/X
42 $452,428 BioMedica Lease Escrow N/A N/A
43 N/A N/A N/A N/A
52 N/A N/A N/A N/A
81 N/A N/A N/A N/A
82 N/A N/A X/X X/X
00 X/X X/X X/X X/X
107 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
137 $24,000 Tax and Insurance Escrow N/A N/A
141 N/A N/A X/X X/X
000 X/X X/X X/X X/X
184 N/A N/A X/X X/X
000 X/X X/X X/X X/X
198 N/A N/A N/A N/A
Letter Initial
Letter of of Credit Replacement
# Credit Description Reserve
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
10 $1,000,000 LOC as additional security for the Nextel West and Silicon Graphics tenants N/A
14 N/A N/A N/A
15 N/A N/A N/A
22 N/A N/A N/A
23 N/A N/A N/A
25 N/A N/A N/A
00 X/X X/X X/X
00 X/X X/X $ 24,200
42 $424,968 Arizeke Letter of Credit N/A
43 $455,772 Tenant LOC transferred to Lender as beneficiary N/A
52 N/A N/A N/A
81 N/A N/A N/A
82 N/A N/A N/A
90 N/A N/A N/A
107 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X $ 26,000
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
-------------------
(xx)
-------------------
-------------------
Recurring Initial Earnout Additional
Renovation/Leasing Debt Service Earnout Reserve Collateral
# Reserve Reserve Reserve Description Amount
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
00 X/X X/X X/X X/X X/X
14 N/A N/A N/A N/A N/A
15 N/A N/A N/A N/A N/A
22 N/A N/A N/A N/A N/A
23 N/A N/A N/A N/A N/A
25 N/A N/A N/A N/A N/A
28 N/A N/A N/A N/A N/A
37 N/A N/A N/A N/A N/A
42 N/A N/A N/A N/A N/A
43 N/A N/A N/A N/A N/A
52 N/A N/A N/A N/A N/A
81 N/A N/A N/A N/A N/A
82 N/A N/A N/A N/A N/A
00 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Additional Additional
Collateral Collateral
# Event Date Description
-------------------------------------------------
-------------------------------------------------
10 X/X X/X
00 X/X X/X
15 N/A N/A
22 N/A N/A
23 N/A N/A
25 N/A N/A
28 N/A N/A
37 N/A N/A
42 N/A N/A
43 N/A N/A
52 N/A N/A
81 N/A N/A
82 N/A N/A
90 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
Exhibit B-1
Representations and Warranties with Respect to the Seller
The Seller hereby represents and warrants that, as of the date
hereof:
1. The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America.
2. The execution and delivery by the Seller of, and the performance
by the Seller under, this Agreement, the execution (including, without
limitation, by facsimile or machine signature) and delivery of any and all
documents contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, do not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event that
the related transaction is deemed to constitute a loan secured by all or part of
the Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under
the conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
do not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated. 16. In connection with its
transfer of the Mortgage Loans to the Purchaser as contemplated herein, the
Seller is receiving new value and consideration constituting at least reasonably
equivalent value and fair consideration.
Exhibit B-2
Representations and Warranties with Respect to the Purchaser The
Purchaser hereby represents and warrants that, as of the date
hereof:
1. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the
performance by the Purchaser under, this Agreement, and the consummation by the
Purchaser of transactions herein contemplated, do not: (a) violate the
Purchaser's organizational documents; or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound or which is applicable to
it or any of its assets, which default or breach, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of creditors'
rights generally, and (b) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof do not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge"
and other words and phrases of like import shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller (and, as
to any Mortgage Loan, with respect to the period subsequent to origination, any
servicer acting on behalf of the Seller with respect to that Mortgage Loan)
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein); provided that the Seller shall be deemed
to have knowledge of the information contained in the Mortgage Loan Documents
relating to the Mortgage Loans. For purposes of this Exhibit C, the "Value" of a
Mortgaged Property shall mean the value of such Mortgaged Property as determined
by the appraisal (and subject to the assumptions set forth in the appraisal)
performed in connection with the origination of the related Mortgage Loan.
The Seller hereby represents and warrants with respect to the
respective Mortgage Loans that, as of the date herein below specified or, if no
such date is specified, as of the date hereof and subject to the exceptions set
forth in Schedule C-1 hereto and Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (consistent
with the definition of Mortgage Loan Schedule in the Pooling and Servicing
Agreement) and correct in all material respects as of the dates of the
information set forth therein or, if not set forth therein, and in all events no
earlier than, as of the respective Due Dates for the Mortgage Loans in June
2003.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Note is, or shall be as of the Closing Date, properly endorsed to
the Purchaser or its designee and each such endorsement is, or shall be as of
the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in June 2003 without giving effect to any applicable grace period,
nor was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June 2003, without
giving effect to any applicable grace period.
4. Lien; Valid Assignment. Except as otherwise set forth on Schedule
C-1, the Mortgage related to and delivered in connection with each Mortgage Loan
constitutes a valid and, subject to the limitations and exceptions set forth in
Paragraph 13 below, enforceable first priority lien upon the related Mortgaged
Property, prior to all other liens and encumbrances, and there are no liens
and/or encumbrances that are pari passu with the lien of such Mortgage, in any
event subject, however, to the following (collectively, the "Permitted
Encumbrances"): (a) the lien for current real estate 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 that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or a "marked-up" commitment binding upon the title
insurer), none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use of the related Mortgaged
Property, the Value of the Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (c) exceptions and exclusions specifically referred to in such
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy or "marked-up" commitment binding upon the title insurer),
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use of the related Mortgaged Property, the
Value of the Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (d) other
matters to which like properties are commonly subject, none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property, which rights
do not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service the related Mortgage Loan; (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration, the terms of which condominium declaration do
not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property, the Value
of the Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan. The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet available to the
Seller) and constitutes a legal, valid, binding and, subject to the limitations
and exceptions set forth in Paragraph 13 below, enforceable assignment of such
Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Borrower to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Assignment of Leases from the relevant assignor to the
Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Borrower owns any interest
in any payments due under the related leases on which the Borrower is the
landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth on Schedule C-1 or in an engineering report prepared
by an independent engineering consultant in connection with the origination of
such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, in good repair and free and clear of any damage that would materially
and adversely affect its value as security for such Mortgage Loan (except in any
such case where an escrow of funds, letter of credit or insurance coverage
exists sufficient to effect the necessary repairs and maintenance). As of the
date of origination of the Mortgage Loan, there was no proceeding pending for
the condemnation of all or any material part of the related Mortgaged Property.
The Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. Except as otherwise set forth on Schedule
C-1, as of the date of origination of each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof (a) all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and, to the extent
in effect at the time of construction, building restriction lines of such
property, and none of the material improvements on the related Mortgaged
Property encroached over any easements, except, in each case, for encroachments
that are insured against by the lender's title insurance policy referred to in
Paragraph 8 below or that do not materially and adversely affect the Value or
current use of such Mortgaged Property and (b) no improvements on adjoining
properties encroached upon such Mortgaged Property so as to materially and
adversely affect the Value of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. Except as otherwise set forth on Schedule C-1,
each Mortgaged Property securing a Mortgage Loan is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy
(the "Title Policy") (or, if such policy is yet to be issued, by a pro forma
policy or a "marked up" commitment binding on the title insurer) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the Permitted Encumbrances. Such Title Policy (or, if
it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) will inure
to the benefit of the Trustee without the consent of or notice to the insurer.
Such Title Policy contains no exclusion for whether, or it affirmatively insures
(unless the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan Documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in Paragraph 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, foreclosure or similar proceedings (as
applicable for the jurisdiction where the related Mortgaged Property is
located). None of the Mortgage Loan Documents contain any provision that
expressly excuses the related Borrower from obtaining and maintaining insurance
coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-1 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment (which may include a Phase II
environmental assessment) or an environmental site assessment update, in each
case meeting ASTM standards and covering all environmental hazards typically
assessed for similar properties including use, type and tenants of the related
Mortgaged Property, or a transaction screen meeting ASTM standards, was
performed by an independent third-party environmental consultant (licensed to
the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) except with respect to the Mortgaged Properties identified on
Schedule C-1, the report of each such assessment, update or screen, if any (an
"Environmental Report"), is dated no earlier than (or, alternatively, has been
updated within) twelve (12) months prior to the date hereof, (c) a copy of each
such Environmental Report has been delivered to the Purchaser, and (d) either:
(i) no such Environmental Report, if any, reveals that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Borrower and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan Documents, maintain an
operations and maintenance plan, (C) the related Borrower, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Borrower or other responsible party is currently taking such actions, if any,
with respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority, (H) the related Mortgaged Property
is insured under a policy of insurance, subject to certain per occurrence and
aggregate limits and a deductible, against certain losses arising from such
circumstances and conditions or (I) a responsible party provided a guaranty or
indemnity to the related Borrower to cover the costs of any required
investigation, testing, monitoring or remediation and, as of the date of
origination of the related Mortgage Loan, such responsible party had financial
resources reasonably estimated to be adequate to cure the subject violation in
all material respects. To the Seller's knowledge, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Borrower under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
Documents for each Mortgage Loan require the related Borrower to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Schedule C-1 are
covered by environmental insurance policies and each such policy is in the
amount at least equal to 125% of the principal balance of the Mortgage Loan, has
a term ending no sooner than the date which is five years after the maturity
date of the Mortgage Loan to which it relates and either does not provide for a
deductible or the deductible amount is held in escrow. Each Borrower represents
and warrants in the related Mortgage Loan Documents that except as set forth in
certain environmental reports and to its actual knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials. Unless the
related Mortgaged Property is identified on Schedule C-1, the related Borrower
(or affiliate thereof) has agreed to indemnify, defend and hold the Seller and
its successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses and claims of any
kind whatsoever (including attorneys' fees and costs) paid, incurred or suffered
by or asserted against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Borrower in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as a
whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, 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.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, and except as set forth on Schedule C-1, all
improvements upon each Mortgaged Property securing a Mortgage Loan are insured
under a fire and extended perils insurance (or the equivalent) policy, in an
amount at least equal to the lesser of the outstanding principal balance of such
Mortgage Loan and 100% of the full insurable replacement cost of the
improvements located on the related Mortgaged Property, and if applicable, the
related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance and does not permit reduction in insurance proceeds
for depreciation. Each Mortgaged Property is also covered by comprehensive
general liability insurance in amounts customarily required by prudent
commercial mortgage lenders for properties of similar types. Except for
Mortgaged Properties disclosed on Schedule C-1, each Mortgaged Property securing
a Mortgage Loan is the subject of a business interruption or rent loss insurance
policy providing coverage for at least twelve (12) months (or a specified dollar
amount which is reasonably estimated to cover no less than twelve (12) months of
rental income), unless such Mortgaged Property constitutes a manufactured
housing community. If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property located in
California or seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), from A.M. Best Company of not less than
"A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than "A-"
from Fitch (or the equivalent). With respect to each Mortgage Loan, the related
Mortgage Loan Documents require that the related Borrower or a tenant of such
Borrower maintain insurance as described above or permit the related mortgagee
to require insurance as described above. Except under circumstances that would
be reasonably acceptable to a prudent commercial mortgage lender or that would
not otherwise materially and adversely affect the security intended to be
provided by the related Mortgage, the Mortgage Loan Documents for each Mortgage
Loan provide that proceeds paid under any such casualty insurance policy will
(or, at the lender's option, will) be applied either to the repair or
restoration of all or part of the related Mortgaged Property or to the payment
of amounts due under such Mortgage Loan; provided that the related Mortgage Loan
Documents may entitle the related Borrower to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further, that, if
the related Borrower holds a leasehold interest in the related Mortgaged
Property, the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph 18 below).
Except as set forth on Schedule C-1, each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. Except as otherwise set forth on Schedule
C-1, to the Seller's knowledge, based upon a letter from governmental
authorities, a legal opinion, a zoning consultant's report or an endorsement to
the related Title Policy, or based on such other due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
subject Mortgaged Property is located (including, without limitation, when
commercially reasonable, a representation of the related Borrower at the time of
origination of the subject Mortgage Loan), the improvements located on or
forming part of each Mortgaged Property securing a Mortgage Loan are in material
compliance with applicable zoning laws and ordinances or constitute a legal
non-conforming use or structure (or, if any such improvement does not so comply
and does not constitute a legal non-conforming use or structure, such
non-compliance and failure does not materially and adversely affect the Value of
the related Mortgaged Property). In the case of each legal non-conforming use or
structure, except as set forth on Schedule C-1, the related Mortgaged Property
may be restored or repaired to the full extent of the use or structure at the
time of such casualty or law and ordinance coverage has been obtained in an
amount that would be required by prudent commercial mortgage lenders (or, if the
related Mortgaged Property may not be restored or repaired to the full extent of
the use or structure at the time of such casualty and law and ordinance coverage
has not been obtained in an amount that would be required by prudent commercial
mortgage lenders, such fact does not materially and adversely affect the Value
of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then, except as otherwise set forth on Schedule C-1:
(i) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) the Borrower's interest in such Ground Lease is assignable to,
and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained); provided that such Ground Lease has not
been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee under such Mortgage Loan;
and such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Borrower's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower, unless the mortgagee
under such Mortgage Loan fails to cure a default of the lessee that is
susceptible to cure by the mortgagee under such Ground Lease following
notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds (other than de
minimis amounts for minor casualties) with respect to the leasehold
interest will be applied either (i) 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 the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of
the Mortgage Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property
is located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and any such action without such consent is not binding on
such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage).
20. Advancement of Funds. In the case of each Mortgage Loan, except
as otherwise set forth on Schedule C-1, neither the Seller nor, to the Seller's
knowledge, any prior holder of such Mortgage Loan has advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than amounts paid by the tenant
as specifically provided under a related lease or by the property manager), for
the payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, except as
otherwise set forth on Schedule C-1, there are no pending actions, suits,
proceedings or governmental investigations by or before any court or
governmental authority against or affecting the Borrower under any Mortgage Loan
or the related Mortgaged Property that, if determined adversely to such Borrower
or Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule
C-1 and except for Mortgage Loans secured by residential cooperative properties,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To the Seller's knowledge, except as otherwise set forth on Schedule C-1, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage. The
related Mortgage Loan Documents require the Borrower under each Mortgage Loan to
pay all reasonable costs and expenses related to any required consent to an
encumbrance, including any applicable Rating Agency fees, or would permit the
related mortgagee to withhold such consent if such costs and expenses are not
paid by a party other than such mortgagee.
24. No Mechanics' Liens. To the Seller's knowledge: (i) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (ii) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. Except as otherwise set forth on Schedule
C-1, to the Seller's knowledge, as of the date of origination of each Mortgage
Loan and based on any of: (i) a letter from governmental authorities, (ii) a
legal opinion, (iii) an endorsement to the related Title Policy, (iv) a
representation of the related Borrower at the time of origination of such
Mortgage Loan, (v) a zoning report from a zoning consultant, or (vi) other due
diligence that a commercially reasonable originator of similar mortgage loans in
the jurisdiction where the related Mortgaged Property is located customarily
performs in the origination of comparable mortgage loans, the related Borrower
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated or such material licenses, permits and franchises have
otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Cross-Collateralized Mortgage Loans,
and the other individual Mortgage Loans secured by multiple parcels, may require
the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements or (ii)
the payment of a release price in connection therewith; and provided, further,
that certain Cross-Collateralized Groups of Mortgage Loans or individual
Mortgage Loans secured by multiple parcels may permit the related Borrower to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan. No release or partial release of any Mortgaged
Property, or any portion thereof, expressly permitted by the related Mortgage
Loan Documents, would constitute a significant modification of the related
Mortgage Loan under Treasury Regulations Section 1.860G-2(b)(2).
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, defeasance under each such
Mortgage Loan is only for the purpose of facilitating the disposition of a
Mortgaged Property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan Documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses associated with
defeasance incurred by the related mortgagee, including Rating Agency fees.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. Except as set forth on Schedule C-1, the Seller or
an affiliate thereof inspected, or caused the inspection of, the related
Mortgaged Property within the preceding twelve (12) months.
33. No Material Default. Except as otherwise set forth on Schedule
C-1, to the Seller's knowledge, there exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Exhibit C.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or, except as set forth in Schedule C-1 hereto, any direct controlling equity
interest in the related Borrower, is transferred or sold, other than by reason
of: (i) if the related Mortgaged Property is a residential cooperative property,
transfers of stock of the Borrower in connection with the assignment of a
proprietary lease for a unit in the related Mortgaged Property by a
tenant-shareholder of the Borrower to other persons who by virtue of such
transfers become tenant-shareholders in the Borrower; and (ii) in the case of
other types of Mortgaged Properties, family and estate planning transfers,
transfers of less than a controlling interest in the Borrower, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Borrower,
transfers among affiliated Borrowers with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Borrowers or
transfers of a similar nature to the foregoing meeting the requirements of the
Mortgage Loan.
35. Single Purpose Entity. Except in cases where the related
Mortgaged Property is a residential cooperative property, and further except as
otherwise described on Schedule C-1, the Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $5,000,000 or more, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Except as otherwise described on Schedule C-1 of
this Agreement, each Mortgaged Property constitutes one or more complete
separate tax lots or is subject to an endorsement under the related Title Policy
insuring same, or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. ARD Loans. Except as otherwise described on Schedule C-1, each
ARD Loan requires scheduled monthly payments of principal. If any ARD Loan is
not paid in full by its Anticipated Repayment Date, and assuming it is not
otherwise in default, (i) the rate at which such ARD Loan accrues interest will
increase by at least two (2) percentage points and (ii) the related Borrower is
required to enter into a lockbox arrangement on the ARD Loan whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest) a valid security interest in the
personal property of the related Borrower granted under the related Mortgage. If
any Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Borrower which are material to the conduct in the
ordinary course of the Borrower's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more Uniform Commercial Code financing statements covering such
personal property have been filed or recorded (or have been sent for filing or
recording) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing of a Uniform Commercial Code financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Seller) executed and delivered in favor of the Trustee
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in Paragraph 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Except as otherwise set forth on
Schedule C-1, each Mortgage Loan begins to amortize prior to its Stated Maturity
Date or, in the case of an ARD Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith.
43. Recourse. Unless the related Mortgaged Property is a residential
cooperative property, except as described on Schedule C-1 hereto, the related
Mortgage Loan Documents contain provisions providing for recourse against the
related Borrower, a principal of such Borrower, or an entity controlled by a
principal of such Borrower for damages, liabilities, expenses or claims
sustained in connection with the Borrower's fraud, material (or, alternatively,
intentional) misrepresentation, waste or misappropriation of any tenant security
deposits (in some cases, only after foreclosure or an action in respect
thereof), rent (in some cases, only after an event of default), insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower, has agreed to indemnify
the mortgagee for damages resulting from violations of any applicable
environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. Except as set forth on
Schedule C-1, the interest of the related Borrower in the Mortgaged Property
securing each Mortgage Loan is a fee simple interest in real property and the
improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) (except
in cases where the related Mortgaged Property is a residential cooperative
property) for the related Mortgaged Property and annual financial statements of
the related Borrower, and with such other information as may be required
therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent Monthly
Payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Borrower of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Concentration. Except as otherwise specified on Schedule C-1
hereto, no single Borrower or, group of Borrowers that are affiliates of each
other is/are the obligor(s) under any group of Mortgage Loans with an aggregate
Cut-off Date Principal Balance of $50,000,000 or more.
Schedule C-1
Exceptions to Seller's Representations and Warranties
PNC Loans
Reference is made to the Representations and Warranties set forth in Exhibit C
attached hereto corresponding to the Paragraph numbers set forth below:
Exception to Paragraph 12:
With respect to the following Mortgage Loans, no Phase I environmental site
assessment was performed and no Phase I environmental report was obtained;
however, such Mortgage Loans are covered by a secured creditor impaired property
policy.
940929819 Admiral Apartments
940929819 Park Plaza Apartments
940920980 The Veranda at Twin Creek Apartments 940931157 Westcreek Court
Townhomes 940931158 Heritage Oaks Apartments 940931187 ParkRidge at XxXxxxxxx
940931198 ParkRidge at Monticello 940930838 Ralph's - Los Angeles
Secured Creditor impaired property policies were also obtained with respect
to the following Mortgage Loans:
940930054 Honeywell International
940931160 Metaldyne Industrial III Portfolio
Exceptions to Paragraph 18
(iii):
940930993 Stonebridge Waterfront Apartments. A portion of this property is a
leasehold interest under a Ground Lease that does not provide for the further
assignment by the Purchaser without the consent of the lessor.
(vii):
940930838 Ralph's - Los Angeles. A portion of this property is a leasehold
interest under a Ground Lease with an original term that expires 3 years and 7
months following the Stated Maturity Date of this Mortgage Loan. The Ground
Lease also provides for six 5-year extension options that are exercisable by the
lender upon its taking possession of the Borrower's leasehold interest.
(viii):
940930993 Stonebridge Waterfront Apartments.
(xi):
940930993 Stonebridge Waterfront Apartments.
Exception to Paragraph 23:
940920980 The Veranda Apartments. This property is currently encumbered by a
junior mortgage which secures debt of $553,423.
Exception to Paragraph 34:
None of the Mortgage Loans provides for acceleration of indebtedness if without
the consent of the holder of the related Mortgage Loan, (i) a direct controlling
equity interest in the related Borrower of 49% or less is transferred or sold or
(ii) a direct controlling equity interest in the related Borrower of any amount
is transferred by virtue of an involuntary change in ownership resulting from a
death or physical or mental disability.
Exceptions to Paragraph 45:
940930838 Ralph's - Los Angeles. Approximately 500 square feet of the
building and a portion of the parking are leased by the Borrower under a
Ground Lease.
940930993 Stonebridge Waterfront Apartments. A portion of the parking at
this property is leased by the Borrower under a Ground Lease.
