EXECUTION COPY
PNC BANK MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of July 25, 2007, between PNC BANK, NATIONAL ASSOCIATION ("PNC"), as seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated as of July 1, 2007, among CCMSI, as depositor, Midland
Loan Services, Inc., Wachovia Bank, National Association and Capmark Finance
Inc., as master servicers (each, a "Master Servicer" and, together, the "Master
Servicers"), CWCapital Asset Management LLC, as special servicer (the "Special
Servicer"), Xxxxx Fargo Bank, National Association, as trustee (the "Trustee")
and LaSalle Bank National Association, as certificate administrator (the
"Certificate Administrator"). Capitalized terms used herein (including the
schedules attached hereto) but not defined herein (or in such schedules) have
the respective meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"), PNC
Capital Markets LLC, Xxxxxx Brothers Inc., Banc of America Securities LLC, and
Capmark Securities Inc. (collectively, the "Dealers"), pursuant to an
underwriting agreement dated as of the date hereof (the "Underwriting
Agreement"), between CCMSI and the Dealers. The Publicly Offered Certificates
are more particularly described in a prospectus supplement dated July 25, 2007
(the "Prospectus Supplement") and the accompanying base prospectus dated July 9,
2007 (the "Base Prospectus" and, together with the Prospectus Supplement, the
"Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI, pursuant to a
certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI and CGMI. The Privately Offered Certificates
are more particularly described in an offering memorandum dated July 25, 2007
(the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., Xxxxx'x Investors Service, Inc. and/or Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx Companies, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Initial Aggregate Mortgage Loan Balance") of $370,519,549 (subject to a
variance of plus or minus 5.0%), after giving effect to any payments due on or
before such date, whether or not such payments are received. The Initial
Aggregate Mortgage Loan Balance, together with the aggregate principal balance
of the Other Mortgage Loans as of the Cut-off Date (after giving effect to any
payments due on or before such date whether or not such payments are received),
is expected to equal an aggregate principal balance (the "Initial Pool Balance")
of $4,756,049,404 (subject to a variance of plus or minus 5.0%). The purchase
and sale of the Mortgage Loans shall take place on July 31, 2007 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of a cash amount, payable in immediately available
funds, as reflected on the settlement statement agreed to by the Seller and the
Purchaser, which amount shall include interest accrued on the Mortgage Loans for
the period from and including the Cut-off Date up to but not including the
Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Seller hereby irrevocably directs the Purchaser to deliver to and deposit
with the Certificate Administrator or the applicable Master Servicer, as
appropriate in accordance with the Pooling and Servicing Agreement, that portion
of the Aggregate Purchase Price equal to the sum of the Initial Deposits for
those Mortgage Loans, if any, that constitute Initial Deposit Trust Mortgage
Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the Seller or its designee of the Aggregate Purchase Price and satisfaction or
waiver of the other conditions to closing that are for the benefit of the
Seller, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (except as set forth in this
Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing-released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance and any escrow, reserve or comparable accounts related to the
Mortgage Loans, subject, in the case of any Mortgage Loan that is part of a Loan
Combination, to the rights of the holder(s) of any other mortgage loan(s) in the
related Loan Combination in
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such proceeds and reserve or comparable accounts, and further subject to the
understanding that the Seller will sell certain servicing rights to the
applicable Master Servicer pursuant to that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date, between such Master Servicer and the
Seller, and may require that a particular primary servicer remain in place with
respect to any or all of the Mortgage Loans.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver or cause to be delivered to the Trustee (with a copy
(except in the case of any letter of credit referred to in clause (xi)(D) below)
to the applicable Master Servicer and the Special Servicer within ten (10)
Business Days after the Closing Date) the documents and instruments specified
below under clauses (i), (ii), (vii), (ix)(A) and (xi)(D) and shall, not later
than the date that is 30 days after the Closing Date, deliver or cause to be
delivered to the Trustee (with a copy to the applicable Master Servicer) the
remaining documents and instruments specified below, in each case with respect
to each Mortgage Loan that is a Serviced Trust Mortgage Loan (the documents and
instruments specified below, collectively, the "Mortgage File"). The Mortgage
File for each Mortgage Loan that is a Serviced Trust Mortgage Loan shall contain
the following documents:
(i) (A) the original executed Mortgage Note including any
power of attorney related to the execution thereof, together with any and
all intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, National Association, as
trustee for the registered holders of Citigroup Commercial Mortgage Trust
2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6",
or in blank (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto) and (B) if the subject Mortgage Loan is
part of a Serviced Loan Combination, a copy of the executed Mortgage Note
for each related Serviced Non-Trust Mortgage Loan;
(ii) an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording
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office) with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "Xxxxx Fargo Bank,
National Association, as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6" (and, if the subject Mortgage Loan is part
of a Serviced Loan Combination, also on behalf of the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents
relating to the subject Mortgage Loan (to the extent not already covered
by the assignment to be delivered pursuant to clause (iv) above), in favor
of "Xxxxx Fargo Bank, National Association, as trustee for the registered
holders of Citigroup Commercial Mortgage Trust 2007-C6, Commercial
Mortgage Pass-Through Certificates, Series 2007-C6" (and, if the subject
Mortgage Loan is part of a Serviced Loan Combination, also on behalf of
the related Serviced Non-Trust Mortgage Loan Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or specimen version of, or a marked commitment
for, the policy that has been executed by an authorized representative of
the title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing office;
and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2007-C6, Commercial Mortgage Pass-Through Certificates, Series
2007-C6" (and, if the subject Mortgage Loan is part of a Serviced Loan
Combination, also on behalf of the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), as assignee, or in blank;
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(ix) an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow agreement,
(C) security agreement or (D) letter of credit relating to a Trust
Mortgage Loan (with the original of any such letter of credit to be
delivered to the applicable Master Servicer).
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to any cross-collateralized and cross-defaulted
Mortgage Loans, the existence in the Mortgage File for any such Crossed Loan of
any document required to be included therein shall be sufficient to satisfy the
requirements of this Agreement for delivery of such document as a part of the
Mortgage File for the other Crossed Loan(s) in the subject Crossed Group, to the
extent that such document is also required to be part of the Mortgage File for
such other Crossed Loan(s) in the subject Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan, promptly (and in any event, as to any such Mortgage Loan, within
90 days following the later of (i) the Closing Date and (ii) the delivery of the
related Mortgage(s), Assignment(s) of Leases, recordable documents and UCC
Financing Statements to the Trustee or the Recording/Filing Agent) complete (if
and to the extent necessary) and cause to be submitted for recording or filing,
as the case may be, in favor of the Trustee in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment of Mortgage, assignment of Assignment of Leases and assignment of any
other recordable documents relating to each such Mortgage Loan, referred to in
Sections 2(c)(iv)(A), (B) and (C) and each assignment of a UCC Financing
Statement in favor of the Trustee and so delivered to the Trustee or the
Recording/Filing Agent and referred to in Section 2(c)(viii). The Seller shall
cause the recorded original of each such assignment of recordable documents to
be delivered to the Trustee or its designee following recording, and shall cause
the file copy of each such UCC Financing Statement to be delivered to the
Trustee or its designee following filing; provided that in those instances where
the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Seller or the Recording/Filing Agent
shall obtain therefrom a copy of the recorded original, which shall be delivered
to the Trustee or its designee. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall promptly
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prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter cause the same to be duly recorded or filed, as
appropriate. The Seller shall be responsible for the out-of-pocket costs and
expenses of the Purchaser, any party to the Pooling and Servicing Agreement, the
Recording/Filing Agent and itself in connection with its performance of the
recording, filing and delivery obligations contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications,
internal correspondence, credit underwriting or due diligence analyses, credit
committee briefs or memoranda or other internal approval documents or data or
internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan and that are not required to
be part of the Mortgage File in accordance with the definition thereof
(including, without limitation, any original letters of credit relating to any
Mortgage Loan); and (ii) within two (2) Business Days after the Closing Date,
any and all escrow amounts and reserve amounts in the Seller's possession or
under its control that relate to the Mortgage Loans.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan. Without
limiting the generality of the foregoing, if a draw upon any such letter of
credit is required before its transfer to the Trust Fund can be completed, the
Seller shall draw upon such letter of credit for the benefit of the Trust
pursuant to written instructions from the applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized
and validly existing and in good standing under the laws of the United
States and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general, as they
may be
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applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the financial condition or the
operations of the Seller or its properties (taken as a whole) or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement
or instrument or subject to any other corporate restriction or any
judgment, order, writ, injunction, decree, law or regulation that would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or that requires the consent of any third person to
the execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions involving the
Seller contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
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(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for
consideration contemplated by this Agreement. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedules III and IV. References in this Agreement to "Breach" mean a breach of
any such representations and warranties made pursuant to this Section 3(b) with
respect to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording or filing office) cannot be cured within such 90-day period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period, or (ii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan not later than the end of such
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the applicable Master Servicer for deposit into its Collection
Account, any Substitution Shortfall Amount in connection therewith; provided
that, if a Document Defect or Breach is capable of being cured but not within
such 90-day period and the Seller has commenced and is diligently proceeding
with the cure of such Document Defect or Breach within such 90-day period, then
unless such Document Defect or Breach would cause the Mortgage Loan not to be a
Qualified Mortgage, such Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase or substitute for the related
Mortgage Loan); and provided, further, that with respect to such additional
90-day period the Seller shall have delivered an officer's certificate to the
Trustee setting forth what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that if the cure of any Document Defect or Breach would require an
expenditure on the part of the Seller in excess of $10,000, then the Seller may,
at its option, within the time period provided above, elect to purchase or
replace the affected Mortgage Loan in accordance with this
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Section 3 without attempting to cure such Document Defect or Breach, as the case
may be. For a period of two years from the Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is an
uncured Document Defect that materially and adversely affects the value of the
applicable Mortgage Loan or the interests of the Certificateholders therein, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect remains uncured and as to the actions being
taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided above, unless: (x) such other Crossed
Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria; (y)
the Seller (at its expense) shall have furnished the Trustee with an Opinion of
Counsel to the effect that the repurchase of or substitution for the affected
Crossed Loan only, including, without limitation, any modification required with
respect to such repurchase or substitution, shall not cause an Adverse REMIC
Event; and (z) the repurchase of or substitution for the affected Crossed Loan
only shall satisfy all other criteria for repurchase or substitution, as
applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing
Agreement. If the conditions set forth in clauses (x), (y) and (z) of the prior
sentence are satisfied, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Document Defect or
Breach exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Loan Repurchase Criteria have been satisfied, so long as the
scope and cost of such Appraisal has been approved by the Seller (such approval
not to be unreasonably withheld). To the extent that the Seller is required to
purchase or substitute for a Crossed Loan hereunder in the manner prescribed
above while the Purchaser continues to hold any other Crossed Loans in such
Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies
against the other's Primary Collateral, but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loans,
including, with respect to the Purchaser, the Primary Collateral securing the
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Crossed Loans still held by the Purchaser, so long as such exercise does not
materially impair the ability of the other party to exercise its remedies
against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document Defect or Breach
shall materially and adversely affect the value of the related Mortgage Loan or
the interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it
10
by the applicable Master Servicer or the Seller, in each case without recourse,
representation or warranty, as shall be necessary to vest in the Seller, the
legal and beneficial ownership of each repurchased Mortgage Loan or replaced
Mortgage Loan, as applicable, (ii) the Trustee, the applicable Master Servicer
and the Special Servicer shall each tender to the Seller, upon delivery to each
of them of a receipt executed by the Seller, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and (iii)
the applicable Master Servicer and the Special Servicer shall release to the
Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of, registration
or filing with, or notice to, any court or governmental agency or body is
required for the execution, delivery and performance by such Purchaser of, or
compliance by such Purchaser with, this Agreement or the consummation of the
transactions of such contemplated by this Agreement, except for any consent,
approval, authorization, order, registration, filing or notice which has been
obtained, made or given prior to the actual performance by such Purchaser of its
obligations under this
11
Agreement, or which, if not obtained would not have a materially adverse effect
on the ability of such Purchaser to perform its obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (i) any term
or provision of the Purchaser's certificate of incorporation or bylaws, (ii) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Purchaser or its
assets, which default might have consequences that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Purchaser or its properties
or have consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the validity of this Agreement or any action taken in
connection with the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser to enter into
and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement
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(the "Closing Documents"), in such forms as are agreed upon and acceptable to
CCMSI, the Seller, the Dealers and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable Master
Servicer, respectively, all documents represented to have been or required to be
delivered to the Trustee and such Master Servicer on or before the Closing Date
pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall each have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) CCMSI and the Dealers shall have received letters from an
independent accounting firm reasonably acceptable to CCMSI and the Seller in
form satisfactory to CCMSI, relating to certain information regarding the
Mortgage Loans and Certificates as set forth in the Prospectus, the Prospectus
Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to the effect
that: (i) the representations and warranties of the Seller in Section 3(a) and
Section 3(b) of this Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date,
subject, in the case of the representations and warranties made by the Seller
pursuant to Section 3(b) of this Agreement, to the exceptions to such
representations and warranties set forth in Schedules III and IV to this
Agreement; provided, however, that the Dealers may not rely upon the
representations and warranties of the Seller in Section 3(b) of this Agreement
or the certificate of the Seller to the extent it pertains to such
representations and warranties; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing
Date, and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or
13
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) True and complete copies of the by-laws of the Seller (as
certified to by the Secretary or an assistant secretary of the Seller), and a
certificate of corporate existence of the Seller issued by the Comptroller of
the Currency not earlier than thirty (30) days prior to the Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and in form and substance
reasonably satisfactory to CCMSI, the Dealers and their respective counsel and
the Rating Agencies, dated the Closing Date and addressed to CCMSI, the Trustee,
the Certificate Administrator, the Dealers and the Rating Agencies, together
with such other written opinions as may be required by the Rating Agencies;
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage Loans by the
Seller to the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
in form and substance reasonably satisfactory to the Seller and its counsel,
dated the Closing Date and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Initial Aggregate Mortgage
Loan Balance represents of the Initial Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding, to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans, the Other Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and other customary
offering materials, including the cost of obtaining any "comfort letters" with
respect to such items; (vii) the reasonable out-of-pocket costs and expenses in
connection with the qualification or exemption of the Certificates under state
securities or "Blue Sky" laws,
14
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Dealers. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian on behalf of the Trustee, of the Mortgage Notes, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be possession by the secured party for purposes
of perfecting the security interest pursuant to Section 9-313 of the Uniform
Commercial Code of the applicable jurisdiction; and (v) notifications to persons
(other than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the secured
party for the purpose of perfecting such security interest under applicable law.
The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement, and in connection therewith
the Seller authorizes the Purchaser to file any and all appropriate Uniform
Commercial Code financing statements.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications in connection herewith shall be in writing and
telecopied or delivered to
15
the intended recipient at the "Address for Notices" specified for such party on
Exhibit A hereto or, as to either party, at such other address as shall be
designated by such party in a notice hereunder to the other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the CCMSI to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
16
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(c)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with accountants designated by CCMSI and reasonably acceptable to the Seller in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge", such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
PNC BANK, NATIONAL ASSOCIATION
By:/s/ Xxxxx X. Xxxx
-----------------------------------
Name:
Title:
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name:
Title:
PNC BANK MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
PNC Bank, National Association
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxx Xxxx
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
I-1
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan, including those
pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application
of any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other Person.
I-2
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there is no
valid offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each case,
with respect to the enforceability of any provisions requiring the payment
of default interest, late fees, Additional Interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the legal,
valid and binding assignment from the Seller, except as such enforcement
may be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage Loan is
part of a Loan Combination, the lien of the Mortgage for the related
Non-Trust Mortgage Loan(s). Except with respect to cross-collateralized
and cross-defaulted Mortgage Loans and Mortgage Loans that are part of a
Loan Combination, there are no mortgage loans that are senior or pari
passu in right of
I-3
payment with the subject Mortgage Loan that are secured by the related
Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to
the extent that possession or control of such items or actions other than
the filing of UCC Financing Statements are required in order to effect
such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with, in the case of taxes and governmental
assessments not presently due and payable, future escrow payments required
to be made pursuant to the related Mortgage Loan documents) to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage loans by
the Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would materially and adversely affect the
value of such Mortgaged Property as security for the Mortgage Loan, and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part
I-4
of a Loan Combination, in the original (aggregate, if applicable)
principal amount of the other mortgage loan(s) constituting the related
Loan Combination) after all advances of principal (as set forth on the
Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in
the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its
successors or assigns is the named insured of such policy; such policy is
assignable in connection with the assignment of the related Mortgage Note
without consent of the insurer and will inure to the benefit of the
Trustee as mortgagee of record; such policy is in full force and effect
upon the consummation of the transactions contemplated by this Agreement;
all premiums thereon have been paid; no material claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; and such policy
contains no material exclusions for, or affirmatively insures (except for
any Mortgaged Property located in a jurisdiction where such insurance is
not available) against any loss due to, (a) lack of access to a public
road and (b) encroachments of any material portion of the improvements
thereon.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the original
principal balance of the Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting
the related Loan Combination), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such
Mortgaged Property is operated as a manufactured housing community, such
Mortgaged Property is also covered by business interruption or rental loss
insurance, in an amount at least equal to twelve (12) months of operations
of the related Mortgaged Property (or in the case of a Mortgaged Property
without any elevator, six (6) months); and as of the Cut-off Date, to the
actual knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent by a commercial and multifamily mortgage lending
institution with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in
I-5
respect of a casualty loss are required to be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property or
(ii) to the reduction of the outstanding principal balance of the Mortgage
Loan, subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent commercial and multifamily mortgage lending institutions
for similar loans. The Mortgaged Property is also covered by comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent commercial and
multifamily mortgage lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to non-payment, ten (10) days prior written notice to
the Mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage requires that the Mortgagor maintain insurance as described above
or permits the Mortgagee to require insurance as described above, and
permits the Mortgagee to purchase such insurance at the Mortgagor's
expense if Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
16. Except with respect to ARD Trust Mortgage Loans, which provide
that the rate at which interest accrues thereon increases after the
Anticipated Repayment Date, the
I-6
Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to Treasury
regulations Sections 1.860G-2(a)(3) and 1.860G-2(f)(2)), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii)
as of the Closing Date. For purposes of the previous sentence, (A) the
fair market value of the referenced interest in real property shall first
be reduced by (1) the amount of any lien on such interest in real property
that is senior to such Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is on a parity with the
Mortgage Loan, and (B) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (1) such Mortgage Loan was
modified after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (2) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected
to a "significant modification" after the date of its origination and at a
time when such Mortgage Loan was not in default or when default with
respect to such Mortgage Loan was not reasonably foreseeable, the Testing
Date shall be the date upon which the latest such "significant
modification" occurred.
19. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting
firm independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such environmental
site assessments, updates and transaction screens, and the Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that
I-7
term is defined in the Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process Designation: E
1527-00, as recommended by the American Society for Testing and Materials
(ASTM), with respect to the related Mortgaged Property and the same have
not been subsequently addressed in all material respects, then one or more
of the following is true: (i) an escrow or letter of credit greater than
100% of the amount identified as necessary by the environmental consulting
firm to address the REC is held by the Seller for purposes of effecting
same (and the related Mortgagor has covenanted in the Mortgage Loan
documents to perform such work); (ii) the related Mortgagor or other
responsible party having financial resources reasonably estimated to be
adequate to address the REC is required to take such actions or is liable
for the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or regulation;
(iii) the related Mortgagor has provided a lender's environmental
insurance policy (in which case such Mortgage Loan is identified on Annex
A to this Schedule I); (iv) an operations and maintenance plan has been or
will be implemented; (v) such conditions or circumstances were
investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation; (vi) the Mortgagor or other responsible party has obtained a
no further action letter or other evidence that governmental authorities
have no intention of taking any action or requiring any action in respect
of the REC; (vii) a party (other than the related Mortgagor) having
financial resources reasonably estimated to be adequate to pay the costs
of any required investigation, testing, monitoring or remediation has
provided a guaranty or indemnity to the Mortgagor or the lender to cover
such costs; or (viii) the REC would not require clean up, remedial action
or other response under environmental laws estimated to cost in excess of
the lesser of $50,000 and 2% of the original principal balance of such
Mortgage Loan. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains no
equity participation by the Seller or shared appreciation feature and does
not provide for any contingent or
I-8
additional interest in the form of participation in the cash flow of the
related Mortgaged Property or, other than the ARD Trust Mortgage Loans,
provide for negative amortization. The Seller holds no preferred equity
interest in the related Mortgagor.
23. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property, each related Mortgage or loan agreement contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the requirements
of the Mortgage or loan agreement, (a) the related Mortgaged Property, or
any controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death or
incapacity of a member, general partner or shareholder of the related
Mortgagor, transfers of less than a controlling interest in a mortgagor,
issuance of non-controlling new equity interests, transfers among existing
members, partners or shareholders in the Mortgagor or an affiliate
thereof, transfers among affiliated Mortgagors with respect to
cross-collateralized and cross-defaulted Mortgage Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting
the requirements of the Mortgage Loan, such as pledges of ownership
interest that do not result in a change of control) or a substitution or
release of collateral is effected other than in the circumstances
specified in representation (26) below, or (b) the related Mortgaged
Property is encumbered in connection with subordinate financing by a lien
or security interest against the related Mortgaged Property, other than
any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior
to the related origination date.
26. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage
in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, and, except with respect to Mortgage Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the
Mortgage Loan, (c) where release is conditional upon the satisfaction of
certain underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged Property
or the
I-9
portion thereof that is being released, (d) which permit the related
Mortgagor to substitute a replacement property in compliance with REMIC
Provisions or (e) which permit the release(s) of unimproved out-parcels or
other portions of the Mortgaged Property that will not have a material
adverse affect on the underwritten value of the security for the Mortgage
Loan or that were not allocated any value in the underwriting during the
origination of the Mortgage Loan, the terms of the related Mortgage do not
provide for release of any portion of the Mortgaged Property from the lien
of the Mortgage except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof
which (a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements which
were included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the Mortgage
Loan lies outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon
such Mortgaged Property to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
title insurance).
29. With respect to at least 95% of the Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the
aggregate Cut-off Date Balance of the Mortgage Pool, the related Mortgagor
has covenanted in its organizational documents and/or the Mortgage Loan
documents to own no significant asset other than the related Mortgaged
Property or Mortgaged Properties, as applicable, and assets incidental to
its ownership and operation of such Mortgaged Property, and to hold itself
out as being a legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received from
any Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
I-10
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect such Mortgagor's ability to pay principal, interest or any other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is
in full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the Mortgage
Loan, the related Mortgagor was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, and, as of the Cut-off Date, the Seller has no actual knowledge
that the related Mortgagor was not in possession of such licenses, permits
and authorizations.
37. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan
have been in all material respects
I-11
legal and the servicing and collection practices used by the Seller or its
affiliates with respect to the Mortgage Loan have met customary industry
standards for servicing of commercial mortgage loans for conduit loan
programs.
38. Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
39. The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related Mortgagor accepts responsibility for fraud and/or other
intentional material misrepresentation. The Mortgage Loan documents for
each Mortgage Loan provide that the related Mortgagor shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two (2) years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or, in
the case of a partial defeasance, in an amount sufficient to make all
scheduled payments with respect to the defeased portion of such Mortgage
Loan). In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys' fees),
and provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which the
lender can require) (i) an accountant's certification as to the adequacy
of the defeasance collateral to make all remaining payments (including any
balloon payment) required to be made under the terms of the related
Mortgage Loan, (ii) an Opinion of
I-12
Counsel that the defeasance complies with all applicable REMIC Provisions,
and (iii) assurances from the Rating Agencies that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings
assigned to the Certificates. Notwithstanding the foregoing, some of the
Mortgage Loan documents may not affirmatively contain all such
requirements, but such requirements are effectively present in such
documents due to the general obligation to comply with the REMIC
Provisions and/or deliver a REMIC Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged Property
to be encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of money
junior to or of equal priority with, or superior to, the lien of the
related Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmen's liens that become payable after the
Cut-off Date of the related Mortgage Loan).
I-13
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
None.
I-14
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than thirty (30) days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period.
4. To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than payments due
but not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The Ground Lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The Ground Lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than
twenty (20) years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution), or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution).
10. The Ground Lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in Schedule I
attached hereto corresponding to the Paragraph numbers set forth below:
EXCEPTIONS TO REPRESENTATION 16
With respect to the following Mortgage Loans, if the related Mortgage Note is
not paid in full on its maturity date and the holder thereof exercises its
option to forebear from pursuing its remedies, such Mortgage Loan provides that,
during the period commencing on or about the related maturity date and
continuing until the earlier of such Mortgage Loan being paid in full or the
holder terminating its forbearance, additional interest above the stated
interest rate applicable prior to the maturity date shall accrue and may be
compounded monthly and shall be payable only after all of the outstanding
principal of such Mortgage Loan is paid in full:
940953624 First Horizon
940953664 Parkway Centre Industrial
940953682 Regal Theatre
940953657 KFC- Florida Portfolio
EXCEPTIONS TO REPRESENTATION 19
See Annex A to Schedule I regarding Mortgage Loans for which environmental
insurance policies have been obtained with respect to the related Mortgaged
Properties.
EXCEPTIONS TO REPRESENTATION 22
46. With respect to the following Mortgage Loans, if the related Mortgage Note
is not paid in full on its maturity date and the holder thereof exercises its
option to forebear from pursuing its remedies, such Mortgage Loan provides that,
during the period commencing on or about the related maturity date and
continuing until the earlier of such Mortgage Loan being paid in full or the
holder terminating its forbearance, additional interest above the stated
interest rate applicable prior to the maturity date shall accrue and may be
compounded monthly and shall be payable only after all of the outstanding
principal of such Mortgage Loan is paid in full:
940953624 First Horizon
940953664 Parkway Centre Industrial
940953682 Regal Theatre
940953657 KFC- Florida Portfolio
EXCEPTIONS TO REPRESENTATION 23
None of the Mortgage Loans provides for acceleration of its unpaid principal
balance if, without the consent of the holder of the related Mortgage Loan, (i)
an equity interest in the related borrower of 49% or less is transferred or sold
or (ii) an equity interest in the related borrower of any amount is transferred
by virtue of an involuntary change in ownership resulting from a death or
physical or mental disability.
With respect to the following Mortgage Loans, the equity holders of the borrower
have a right to obtain mezzanine financing, secured by a pledge of the direct or
indirect ownership interests in the borrower, provided that the requirements set
forth in the related loan documents, including an intercreditor agreement
between the holder of the Mortgage Loan and the mezzanine lender, are satisfied:
940953550 0000 Xxxx Xxxx Xxxx
III-1
940953588 Hampton Inn - Victoria
940953548 Holiday Inn & Suites - Grand Prairie
940953617 XxXxxxxx Inn & Suites
940953682 Regal Theatre
III-2
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
None.
IV-1
ANNEX A
MORTGAGE LOAN SCHEDULE
Annex-A
LOAN
LOAN MORTGAGE GROUP
NUMBER LOAN SELLER NUMBER LOAN / PROPERTY NAME
--------------------------------------------------------------------------
36 PNC 1 University Center East - San Diego
39 PNC 2 Cornerstone Ranch Apartment Homes
63 PNC 1 University Shopping Center
66 PNC 1 Xxxxxx Shopping Center
68 PNC 1 South Jordan Market Place
77 PNC 1 Xxxxxx Medical Plaza
--------------------------------------------------------------------------
88 PNC 1 KFC - Florida Portfolio
88.1 1 KFC - Port Charlotte
88.2 1 KFC - S. Fort Xxxxxx
88.3 1 KFC - W. Cape Coral
88.4 1 KFC - Xxxxxx Springs
88.5 1 KFC - Xxxxxx Xxxx
00.0 0 XXX - Xxxx Xxxxx
88.7 1 KFC - Fort Xxxxx
--------------------------------------------------------------------------
90 PNC 1 South Xxxxxx Xxxx Center
--------------------------------------------------------------------------
94 PNC 1 Magnolia Office Portfolio
94.1 1 730 & 000 Xxxxxxxx Xxxxx
94.2 1 595 Double Eagle
--------------------------------------------------------------------------
96 PNC 1 Westport Warehouse
110 PNC 0 Xxxxxxxx Xxxxxx - Xxxxxxxxxx Xxxxxxxxxx
118 PNC 1 Commerce Center One
140 PNC 1 The Wesleyan Building
146 PNC 1 Dollar Self Storage - Santa Fe Springs
155 PNC 1 PFPC Worldwide
159 PNC 1 Country Suites - Lake Xxxxxx
160 PNC 0 Xxxx Xxxxxx Xxxxx Xxxxxxxxxx #0
166 PNC 1 Rehoboth Marketplace
170 PNC 1 Parkway Centre Industrial
174 PNC 1 Regal Theatre
183 PNC 1 Paradise Victoria
184 PNC 2 Bear Creek Apartments
187 PNC 1 Dollar Self Storage - Peoria
194 PNC 0 Xxxx Xxxxx Xxxxx
000 XXX 0 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
200 PNC 1 Hampton Inn - Victoria
204 PNC 1 000 Xxx Xxxx Xxxx Associates
206 PNC 2 Delaware Crossing
207 PNC 1 Legacy Plaza
208 PNC 1 One Journal Square Plaza
209 PNC 1 The Shops at Vista Commons
213 PNC 1 Holiday Inn Express & Suites - Grand Prairie
216 PNC 1 La Quinta Inn & Suites
223 PNC 2 Highclere Apartments
241 PNC 1 Rehoboth Plaza
242 PNC 1 Camden Village Shopping Center
248 PNC 1 Eastland Medical Building
249 PNC 0 Xxxxx Xxxxxx Shops
252 PNC 2 Cedar Village Mobile Home Park
275 PNC 2 Careys Estates Mobile Home Park
277 PNC 1 Eye Care 20/20
281 PNC 0 Xxxxxx Xxxxx Xxxxxx Xxxx
000 XXX 1 CEAH Realtors Building
284 PNC 1 Xxxxx Xxxxxxx Building
290 PNC 1 Sofa Express
293 PNC 1 0000 Xxxx Xxxx Xxxx
294 PNC 1 National Tire & Battery
297 PNC 2 Longwood Park Apartments
299 PNC 1 First Horizon
300 PNC 1 Advance Auto Parts - IL
309 PNC 1 1st Financial Bank Building
317 PNC 1 00 Xxxxx Xxxxxx
LOAN ZIP
NUMBER PROPERTY ADDRESS CITY STATE CODE COUNTY
------------------------------------------------------------------------------------------------------------------------------
36 0000 Xxxxxxxx Xxxxx Xxx Xxxxx XX 00000 San Diego
39 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 Xxxxxx
63 0000-0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxx XX 00000 Brazos
66 0000 0xx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Olmsted
68 10433 - 00000 Xxxxx Xxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Salt Lake
77 0000 Xxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Los Angeles
------------------------------------------------------------------------------------------------------------------------------
88 Various Various FL Various Various
88.1 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000 Chorlotte
88.2 00000 X. Xxxxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 Xxx
88.3 00 X. Xxxxxxx Xxxxxx Xxxxxxx Xxxx Xxxxx XX 00000 Xxx
88.4 00000 X. Xxxxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 Xxx
88.5 00000 Xxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX 00000 Xxxxxxx
88.6 0000 Xxx Xxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000 Xxx
88.7 0000 Xxxx Xxxxx Xxxx. Xxxx Xxxxxx XX 00000 Xxx
------------------------------------------------------------------------------------------------------------------------------
90 10541-10577 South Redwood Road 0000-0000 Xxxx Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxx XX 00000 Salt Lake
------------------------------------------------------------------------------------------------------------------------------
94 Xxxxxxx Xxxx XX 00000 Washoe
94.1 000 & 000 Xxxxxxxx Xxxxx Xxxx XX 00000 Washoe
94.2 000 Xxxxxx Xxxxx Xxxx XX 00000 Washoe
------------------------------------------------------------------------------------------------------------------------------
96 000 Xxxxxxxxxxxx Xx Xxxx Xxxxx XX 00000 Xxxxxx
110 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Chesapeake City
118 000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Hartford
140 000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Suffolk
146 0000 Xxxxxxx Xxxx Xxxxx Xx Xxxxxxx XX 00000 Los Angeles
155 00-00 Xxxxxxxx Xxxxxxxxx XX 00000 Essex
159 00000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Mecklenburg
160 000 X Xxxx Xxxxxx Xxxxxx XX 00000 New Castle
166 00000 Xxxxxxx Xxx Xxxxxxxx Xxxxx XX 00000 Sussex
170 00000-00000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 San Diego
174 000 Xxxx Xxxxxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000 Lake
183 1145 & 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Ventura
184 000 Xxx Xxxx Xxxxxx Xxxxxx XX 00000 Tarrant
187 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Maricopa
194 0000-0000 X 0000 Xxxxx Xxxxx XX 00000 Salt Lake
199 000-000 X. Xxxxxxx Xxxxxx Xxxxxx XX 00000 Elkart
200 0000 Xxxxx Xxxxxxx Xxxxxxxx XX 00000 Victoria
204 000 Xxx Xxxx Xxxx Xxxxxxx XX 00000 Bergen
206 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Kenton
207 5610-5620 & 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx XX 00000 Salt Lake
208 0 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Xxxxxx
209 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Maricopa
213 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 Dallas
216 000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 Xxxxx
223 000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000 Pottawattamie
241 18993 Munchy Xxxxxx Xxxx Xxxxxxxx XX 00000 Sussex
242 0000-0000 XX 00xx Xxxxxx Xxxxx XX 00000 Cleveland
248 00000 X. Xxxxxxxx Xxxxxx Xx. Xxxxxxxxxxxx XX 00000 Xxxxxxx
249 101 & 00 Xxxx Xxxxx Xxxxxx Xxxxx Xx XX 00000 Santa Fe
252 000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Sussex
000 Xxxxx'x Xxxx Xxxx Xxxxxxxxx XX 00000 Sussex
277 00 Xxxxx Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Xxxxxx
281 0000 Xxxxxxx Xxxx Xxxxxx XX 00000 Xxxxxx
283 0000 XX Xxxxxxxx Xxx'x Xxxxxx XX 00000 Xxxxxxx Drive
284 000-000 Xxxxx Xxxxxx Xxxx Xxx'x Xxxxxx XX 00000 Xxxxxxx
290 000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 Delaware
293 0000 Xxxx Xxxx Xxxx Xxx Xxxxx XX 00000 Milwaukee
294 00000 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Xxxxxxx
297 0000 Xxxx Xxxxxx Xxxxxx XX 00000 Xxxxx
299 0000 XX Xxxxx Xxxxx Xx Xxx'x Xxxxxx XX 00000 Xxxxxxx
300 000 X. XxXxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000 Xxxx
309 000 XX Xxxxx Xxxxxx Xxxx Xxx'x Xxxxxx XX 00000 Xxxxxxx
317 00 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Suffolk
CROSS ADDITIONAL INTEREST
COLLATER- INTEREST RESERVE
CUT-OFF DATE ALIZED MASTER RATE MORTGAGE
LOAN PRINCIPAL (MORTGAGE MORTGAGE SERVICING ARD LOAN AFTER LOAN GRACE
NUMBER BALANCE LOAN GROUP) RATE FEE RATE (YES/NO)? ARD ARD (YES/NO)? LOAN TYPE PERIOD
-------------------------------------------------------------------------------------------------------------------------------
36 27,222,031.67 No 5.8400% 0.0400% No No Balloon 5
39 24,700,000.00 No 5.6500% 0.0300% No No Partial IO/Balloon 5
63 16,800,000.00 No 5.5800% 0.0400% No No Partial IO/Balloon 5
66 16,000,000.00 No 5.5500% 0.0500% No No Partial IO/Balloon 5
68 15,650,000.00 No 5.6100% 0.0600% No No Interest Only 5
77 14,120,000.00 No 5.4100% 0.0500% No No Interest Only 5
-------------------------------------------------------------------------------------------------------------------------------
88 12,700,000.00 No 5.9900% 0.0300% No No Interest Only 5
88.1
88.2
88.3
88.4
88.5
88.6
88.7
-------------------------------------------------------------------------------------------------------------------------------
90 12,700,000.00 No 5.6100% 0.0600% No No Interest Only 5
-------------------------------------------------------------------------------------------------------------------------------
94 12,000,000.00 No 5.6200% 0.0600% No No Partial IO/Balloon 5
94.1
94.2
-------------------------------------------------------------------------------------------------------------------------------
96 11,987,730.47 No 5.8600% 0.0300% No No Balloon 5
110 10,500,000.00 No 5.8200% 0.0300% No No Balloon 5
118 9,836,000.00 No 6.0300% 0.0600% No No Partial IO/Balloon 5
140 8,500,000.00 No 5.6800% 0.0300% No No Partial IO/Balloon 5
146 8,153,000.00 No 5.9000% 0.0600% No No Partial IO/Balloon 5
155 7,987,520.76 No 5.4900% 0.0300% No No Balloon 5
159 7,831,907.29 No 5.8100% 0.0300% No No Balloon 5
160 7,825,000.00 No 5.6000% 0.0300% No No Partial IO/Balloon 5
166 7,450,000.00 No 5.6500% 0.0300% No No Partial IO/Balloon 5
170 7,250,000.00 No 5.6400% 0.0800% No No Partial IO/Balloon 5
174 6,984,285.29 No 5.6900% 0.0600% No No Balloon 5
183 6,351,000.00 No 6.0000% 0.0300% No No Partial IO/Balloon 5
184 6,345,688.95 No 6.0800% 0.0300% No No Balloon 5
187 6,197,000.00 No 5.9000% 0.0600% No No Balloon 5
194 6,000,000.00 No 5.6100% 0.0600% No No Interest Only 5
199 5,900,000.00 No 6.3500% 0.0600% No No Balloon 5
200 5,800,000.00 No 6.1700% 0.0300% No No Partial IO/Balloon 5
204 5,600,000.00 No 5.7300% 0.0300% No No Balloon 5
206 5,350,000.00 No 5.8700% 0.0600% No No Partial IO/Balloon 5
207 5,350,000.00 No 5.6100% 0.0600% No No Interest Only 5
208 5,350,000.00 No 5.6700% 0.0300% No No Partial IO/Balloon 5
209 5,300,000.00 No 5.8500% 0.0800% No No Partial IO/Balloon 5
213 5,240,140.48 No 5.8800% 0.0800% No No Balloon 5
216 5,094,903.47 No 5.9800% 0.0300% No No Balloon 5
223 4,800,000.00 No 5.8300% 0.0600% No No Partial IO/Balloon 5
241 3,900,000.00 No 5.6500% 0.0300% No No Partial IO/Balloon 5
242 3,896,000.00 No 5.7300% 0.0600% No No Balloon 5
248 3,700,000.00 No 5.7700% 0.0300% No No Partial IO/Balloon 5
249 3,700,000.00 No 5.9600% 0.0500% No No Partial IO/Balloon 5
252 3,600,000.00 No 5.7500% 0.0300% No No Partial IO/Balloon 5
275 2,520,000.00 No 5.7500% 0.0300% No No Partial IO/Balloon 5
277 2,500,000.00 No 6.0300% 0.0300% No No Partial IO/Balloon 5
281 2,435,000.00 No 5.7600% 0.0600% No No Interest Only 5
283 2,344,000.00 No 5.8000% 0.0800% No No Partial IO/Balloon 5
284 2,340,000.00 No 5.6500% 0.0800% No No Partial IO/Balloon 5
290 2,255,447.52 No 5.5600% 0.0300% No No Balloon 5
293 2,120,929.11 No 5.7900% 0.0800% No No Balloon 5
294 2,113,873.28 No 5.9500% 0.0800% No No Balloon 5
297 1,898,090.38 No 5.950000% 0.0400% No No Balloon 5
299 1,850,000.00 No 5.6500% 0.0300% No No Partial IO/Balloon 5
300 1,820,000.00 No 5.7700% 0.0500% No No Partial IO/Balloon 5
309 1,450,000.00 No 5.8000% 0.0800% No No Partial IO/Balloon 5
317 1,200,000.00 No 5.8500% 0.0300% No No Balloon 5
PERIODIC ORIGINAL REMAINING STATED STATED
PAYMENT ON TERM TO TERM TO ORIGINAL REMAINING
STATED FIRST DUE MATURITY MATURITY AMORTIZATION AMORTIZATION DEFEASANCE
LOAN MATURITY DATE AFTER / ARD / ARD TERM TERM LOAN BORROWER'S PROPERTY
NUMBER DATE CLOSING (MONTHS) (MONTHS) (MONTHS) (MONTHS) (YES/NO)? INTEREST SIZE
----------------------------------------------------------------------------------------------------------------------
36 06/01/17 160,585.00 120 119 360 359 Yes Fee Simple 97,976
39 07/01/17 120,172.36 120 120 360 360 No Fee Simple 352
63 04/01/17 80,724.00 120 117 360 360 Yes Fee Simple 169,989
66 06/01/17 76,466.67 120 119 360 360 Yes Fee Simple 135,409
68 06/01/17 75,602.54 120 119 Interest Only Interest Only Yes Fee Simple 119,637
77 05/01/17 65,779.59 120 118 Interest Only Interest Only Yes Fee Simple 51,146
----------------------------------------------------------------------------------------------------------------------
88 06/01/12 65,507.31 60 59 Interest Only Interest Only No Fee Simple 19,093
88.1 Fee Simple 2,780
88.2 Fee Simple 3,439
88.3 Fee Simple 3,360
88.4 Fee Simple 2,842
88.5 Fee Simple 1,899
88.6 Fee Simple 2,746
88.7 Fee Simple 2,027
----------------------------------------------------------------------------------------------------------------------
90 06/01/17 61,351.58 120 119 Interest Only Interest Only Yes Fee Simple 86,000
----------------------------------------------------------------------------------------------------------------------
94 06/01/17 58,073.33 120 119 360 360 Yes Fee Simple 91,920
94.1 Fee Simple 54,608
94.2 Fee Simple 37,312
----------------------------------------------------------------------------------------------------------------------
96 06/01/17 70,869.53 120 119 360 359 Yes Fee Simple 157,312
110 07/01/17 61,742.86 120 120 360 360 Yes Fee Simple 100
118 06/01/17 51,073.43 120 119 360 360 No Fee Simple 99,402
140 06/01/17 41,574.44 120 119 360 360 Yes Fee Simple 32,056
146 06/01/17 41,421.77 120 119 360 360 Yes Fee Simple 93,340
155 06/01/17 49,079.24 120 119 300 299 No Fee Simple 184,935
159 06/01/17 46,051.38 120 119 360 359 No Fee Simple 87
160 06/01/17 37,733.89 120 119 360 360 Yes Fee Simple 48
166 07/01/17 36,246.32 120 120 360 360 Yes Fee Simple 66,912
170 06/01/17 35,210.83 120 119 360 360 Yes Fee Simple 74,736
174 12/01/18 48,906.38 138 137 240 239 Yes Fee Simple 72,621
183 06/01/17 32,813.50 120 119 360 360 Yes Fee Simple 18,247
184 10/01/16 38,701.03 120 111 360 351 No Fee Simple 235
187 07/01/17 36,756.67 120 120 360 360 Yes Fee Simple 87,435
194 06/01/17 28,985.00 120 119 Interest Only Interest Only Yes Fee Simple 42,451
199 07/01/17 36,711.91 120 120 360 360 Yes Fee Simple 106,327
200 06/01/17 30,815.72 120 119 360 360 No Fee Simple 68
204 07/01/17 32,608.97 120 120 360 360 Yes Fee Simple 25,700
206 06/01/17 27,042.76 120 119 360 360 Yes Fee Simple 96
207 06/01/17 25,844.96 120 119 Interest Only Interest Only Yes Fee Simple 8,104
208 07/01/17 26,121.38 120 120 360 360 Yes Fee Simple 53,334
209 06/01/17 26,698.75 120 119 360 360 No Fee Simple 22,241
213 05/01/17 31,072.51 120 118 360 358 No Fee Simple 70
216 06/01/17 30,511.53 120 119 360 359 Yes Fee Simple 74
223 05/01/17 24,097.33 120 118 360 360 Yes Fee Simple 97
241 07/01/17 18,974.58 120 120 360 360 Yes Fee Simple 22,524
242 07/01/17 22,686.52 120 120 360 360 Yes Fee Simple 31,100
248 06/01/17 18,383.86 120 119 360 360 Yes Fee Simple 19,239
249 06/01/17 18,989.22 120 119 360 360 Yes Fee Simple 18,822
252 07/01/17 17,825.00 120 120 360 360 Yes Fee Simple 147
275 07/01/17 12,477.50 120 120 360 360 Yes Fee Simple 102
277 06/01/17 12,981.25 120 119 360 360 Yes Fee Simple 11,250
281 05/01/17 12,077.60 120 118 Interest Only Interest Only No Fee Simple 34,044
283 05/01/17 11,706.98 120 118 360 360 Yes Fee Simple 12,502
284 05/01/17 11,384.75 120 118 360 360 Yes Fee Simple 15,157
290 05/01/17 12,917.24 120 118 360 358 Yes Fee Simple 21,000
293 05/01/17 12,454.97 120 118 360 358 Yes Fee Simple 9,697
294 06/01/17 12,618.55 120 119 360 359 No Fee Simple 7,964
297 06/01/17 11,330.45 120 119 360 359 Yes Fee Simple 100
299 06/01/17 9,000.76 120 119 360 360 Yes Fee Simple 12,965
300 06/01/17 9,042.87 120 119 360 360 No Fee Simple 7,000
309 05/01/17 7,241.94 120 118 360 360 Yes Fee Simple 7,296
317 07/01/17 7,079.29 120 120 360 360 Yes Fee Simple 14,102
ESCROWED ESCROWED
ESCROWED REPLACEMENT ESCROWED TI/LC
ESCROWED REPLACEMENT RESERVES TI/LC RESERVES INITIAL
ANNUAL ESCROWED RESERVES CURRENT RESERVES CURRENT DEFERRED INITIAL
LOAN PROPERTY LOCKBOX/ REAL ESTATE ANNUAL INITIAL ANNUAL INITIAL ANNUAL MAINTENANCE ENVIRONMENTAL
NUMBER SIZE TYPE (YES/NO)? TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT DEPOSIT DEPOSIT DEPOSIT
-----------------------------------------------------------------------------------------------------------------------------------
36 SF No Yes Yes 0 19,595 1,000,000 0 0 0
39 Units No Yes Yes 0 88,000 NAP NAP 400,000 0
63 SF Yes Yes Yes 0 25,498 629,240 0 29,240 0
66 SF Yes Yes Yes 0 8,673 0 40,000 59,898 0
68 SF No Yes No 0 17,946 200,000 0 10,450 0
77 SF No Yes Yes 100,000 0 700,000 0 0 0
-----------------------------------------------------------------------------------------------------------------------------------
88 SF Yes No No 0 0 0 125,000 0 15,000
88.1 SF
88.2 SF
88.3 SF
88.4 SF
88.5 SF
88.6 SF
88.7 SF
-----------------------------------------------------------------------------------------------------------------------------------
90 SF Yes Yes No 0 12,903 50,000 50,000 0 0
-----------------------------------------------------------------------------------------------------------------------------------
94 SF No No No 0 18,371 350,000 0 0 0
94.1 SF
94.2 SF
-----------------------------------------------------------------------------------------------------------------------------------
96 SF No Yes Yes 0 0 0 0 16,875 11,000
110 Rooms No Yes Yes 0 59,073 NAP NAP 0 0
118 SF No Yes No 0 19,880 150,000 0 0 0
140 SF No Yes Yes 0 0 0 0 0 0
146 SF No Yes Yes 0 14,208 NAP NAP 0 0
155 SF No Yes Xx 0 0 0 0 0 0
000 Xxxxx Xx Yes Yes 367,029 91,648 NAP NAP 0 0
160 Units No Yes Yes 0 15,600 NAP NAP 0 0
166 SF Yes Yes Yes 0 13,383 0 20,000 177,500 0
170 SF Yes Yes Yes 0 7,474 0 0 0 0
174 SF Yes No No 0 10,893 0 0 0 0
183 SF No Yes Yes 0 2,737 189,454 0 0 0
184 Units No Yes Yes 0 58,750 NAP NAP 26,188 0
187 SF No Yes Yes 0 13,462 NAP NAP 0 0
194 SF No Yes No 0 8,652 0 36,000 0 0
199 SF Yes Yes Yes 0 25,306 0 10,000 0 750
200 Rooms No No No 21,250 35,769 NAP NAP 0 0
204 SF No Yes Yes 0 5,140 0 0 0 0
206 Units No Yes Yes 0 24,000 NAP NAP 35,345 0
207 SF No Yes No 0 3,626 0 10,000 0 0
208 SF No Yes Yes 0 10,667 0 20,000 59,360 0
209 SF No Yes Yes 0 3,378 300,000 15,000 0 0
213 Rooms No Yes Yes 0 72,343 NAP NAP 0 0
216 Rooms No No No 0 36,475 NAP NAP 0 0
223 Units No Yes Yes 0 24,250 NAP NAP 2,145 1,000
241 SF No Yes Yes 0 3,589 0 0 0 0
242 SF No Yes Yes 0 4,665 112,000 0 0 0
248 SF Yes Yes Yes 0 3,848 223,146 15,000 0 0
249 SF No Yes Yes 6,850 0 20,000 0 51,250 0
252 Units No Yes Yes 0 7,350 NAP NAP 0 0
275 Units No Yes Yes 0 5,150 NAP NAP 0 0
277 SF No Yes Yes 0 2,250 0 0 0 0
281 SF No Yes No 0 5,107 25,000 0 0 0
283 SF No Yes Yes 0 2,500 47,000 0 0 0
284 SF No Yes Yes 0 3,031 0 0 0 0
290 SF No No No 0 0 0 0 0 0
293 SF No Yes Yes 0 1,569 134,798 0 0 0
294 SF Yes No Yes 0 0 0 21,000 0 0
297 Units No Yes Yes 0 25,000 NAP NAP 0 0
299 SF Yes Yes Yes 0 2,593 0 0 0 0
300 SF Yes No Yes 0 1,050 0 0 0 0
309 SF No Yes Yes 0 1,094 0 10,000 0 0
317 SF No Yes Yes 0 4,408 0 12,000 7,200 1,000
LOAN HOLDBACK ENVIRONMENTAL
NUMBER AMOUNT LOC INSURANCE POLICY
----------------- ---------------------------------------------
36
39
63
66 400,000
68
77
----------------- ---------------------------------------------
88
88.1
88.2
88.3
88.4
88.5
88.6
88.7
----------------- ---------------------------------------------
90
----------------- ---------------------------------------------
94
94.1
94.2
----------------- ---------------------------------------------
96
110
118
140 200,000
146
155
159
160
166
170
174
183
184
187
194
199
200
204
206
207
208
209
213
216
223
241
242 112,000
248
249
252
275
277
281
283
284
290
293
294
297
299
300
309
317
