EXHIBIT 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is
dated as of December 15, 2004 between PNC BANK, NATIONAL ASSOCIATION (the
"Seller") and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the "Mortgage
Loans") identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 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"), dated as of
December 1, 2004, among the Purchaser, as depositor, Midland Loan Services,
Inc., as master servicer (the "Master Servicer"), Lennar Partners, Inc., as
special servicer (the "Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee
(the "Trustee"). 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.
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 of $118,334,011.44 (the "PNC
Bank Mortgage Loan Balance") (subject to a variance of plus or minus 5.0%) as of
the close of business on the Cut-off Date, after giving effect to any payments
due on or before such date, whether or not such payments are received. The PNC
Bank Mortgage Loan Balance, together with the aggregate principal balance of the
Other Mortgage Loans as of the Cut-off Date (after giving effect to any payments
due on or before such date whether or not such payments are received), is
expected to equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of $1,030,490,079 (subject to a variance of plus or minus 5.0%). The
purchase and sale of the Mortgage Loans shall take place on December 22, 2004 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 an amount equal to (i) 103.1559% of the PNC Bank
Mortgage Loan Balance as of the Cut-off Date, plus (ii) $365,797.90, which
amount represents the amount of interest accrued on the PNC Bank Mortgage Loan
Balance at, in the case of the portion thereof attributable to each Mortgage
Loan, the related Net Mortgage Rate for the period from and including the
Cut-off Date up to but not including the Closing Date.
The cash component of the Aggregate Purchase Price shall be
paid to the Seller or its designee by wire transfer in immediately available
funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the
Seller shall deliver, the Closing Date Deposit (in the amount of $19,147.67) to
the Master Servicer on the Closing Date. The Closing Date Deposit shall be
delivered to the account specified by the Master Servicer by wire transfer of
immediately available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
by the Seller of the Aggregate Purchase Price and satisfaction or waiver of the
other conditions to closing that are for the benefit of the Seller (which
conditions shall be deemed to have been satisfied or waived upon the Seller's
receipt of the Aggregate Purchase Price), 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 proceeds and all of the Seller's right, title and
interest in and to the Closing Date Deposit.
(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 to the Trustee (with a copy to the Master
Servicer and the Special Servicer within ten Business Days of the Closing Date),
the documents and instruments specified below with respect to each Mortgage Loan
(each a "Mortgage File"). All Mortgage Files so delivered will be held by the
Trustee in escrow for the benefit of the Seller at all times prior to the
Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any
power of attorney related to the execution thereof, 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, N.A., as trustee
for the registered holders of Citigroup Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series 2004-C2
or in blank (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto);
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(ii) an original or 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 copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage),
together with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in
blank, the name of the assignee), of (A) the Mortgage, (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (C) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2, or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of Xxxxx Fargo Bank, N.A., as
trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2004-C2, Commercial Mortgage Pass-Through Certificates, Series
2004-C2, 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 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 marked version of 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 such
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to the extent the Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement and continuation 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, N.A., as trustee for
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the registered holders of Citigroup Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2, as
assignee, or in blank;
(ix) an original or a copy of (A) any Ground Lease and (B)
any loan guaranty, indemnity, ground lessor estoppel or environmental
insurance policy or lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor; and
(xi) copies of any loan agreement, escrow agreement,
security agreement or letter of credit relating to a Mortgage Loan.
(d) The Seller, at its own cost and expense, shall retain an
Independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan, promptly (and in any event, as to any Mortgage Loan, within 90
days following the latest of (i) the Closing Date and (ii) the delivery of the
related Mortgage(s), Assignment(s) of Leases, recordable documents, and UCC
Financing Statements to the Trustee complete (if and to the extent necessary)
and cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, in favor of the Trustee referred to in Sections 2(c)(iv)(A), (B) and (C)
and each assignment of a UCC Financing Statement in favor of the Trustee and so
delivered to the Trustee and referred to in Sections 2(c) (viii). The Seller
shall cause the recorded original of each such assignment of recordable
documents to be delivered to the Trustee or its designee following recording,
and shall cause the file copy of each such UCC Financing Statement to be
delivered to the Trustee or its designee following filing; provided that in
those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Seller or the
Recording/Filing Agent shall obtain therefrom a certified copy of the recorded
original, which shall be delivered to the Trustee or its designee. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall promptly prepare or cause
to be prepared a substitute therefor or cure such defect, as the case may be,
and thereafter cause the same to be duly recorded or filed, as appropriate. The
Seller shall be responsible for the out-of-pocket costs and expenses of the
Recording/Filing Agent in connection with its performance the recording, filing
and delivery obligations contemplated above.
(e) All documents and records (except draft documents,
attorney-client privileged communications and internal correspondence, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations and other underwriting analysis of the Seller)
relating to, and necessary for the servicing and administration of, each
Mortgage Loan and in the Seller's possession that are not required to be
delivered to the Trustee shall promptly be delivered or caused to be delivered
by the Seller to the Master Servicer or at the direction of the Master Servicer
to the appropriate sub-servicer, together with any related escrow amounts and
reserve amounts.
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(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller which secure any Mortgage Loan.
Without limiting the generality of the foregoing, if a draw upon a letter of
credit is required before its transfer to the Trust Fund can be completed, the
Seller shall draw upon such letter of credit for the benefit of the Trust
pursuant to written instructions from the Master Servicer.
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 of America and possesses all requisite authority, power,
licenses, permits and franchises to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights in general, as they may be applied in the context of the
insolvency of a national banking association, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of
this Agreement will not (A) violate the Seller's articles of
association or bylaws, (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
default might have consequences that would, in the Seller's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
have consequences that would materially and adversely affect its
performance hereunder;
(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
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Seller's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Seller
or its properties or have consequences that would materially and
adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement
or instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement or that requires
the consent of any third person to the execution of this Agreement or
the performance by the Seller of its obligations under this Agreement
(except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions
contemplated by this Agreement except as have previously been obtained,
and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement; and
(viii) 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
consisting of the Aggregate Purchase Price. 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 selling the Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud any
of the creditors of the Seller.
(b) The Seller hereby makes, 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 and the Trustee (for the benefit of the Certificateholders), which
representations and warranties are subject to the exceptions set forth on
Schedule III.
(c) If the Seller receives written notice of a Document Defect
or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any
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party to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), 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,
cure such Document Defect or Breach, as the case may be, in all material
respects, which shall include payment of actual losses and any Additional Trust
Fund Expenses directly resulting therefrom or, if such Document Defect or Breach
(other than omissions solely due to a document not having been returned by the
related recording office) cannot be cured within such 90-day period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period, or (ii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan not later than the end of such
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith; provided, however, that,
if 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 no Document Defect (other than with respect to a Mortgage Note,
Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan or the interests of the Certificateholders therein unless the document with
respect to which the Document Defect exists is required in connection with an
imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any borrower or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on any collateral securing the related Mortgage Loan or for any
immediate significant servicing obligations. 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, 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. Notwithstanding the foregoing, the delivery of a commitment to issue a
policy of lender's title insurance as described in paragraph 12 of Schedule I
hereof in lieu of the delivery of the actual policy of lender's title insurance
shall not be considered a Document Defect with respect to any Mortgage Loan if
such actual policy of insurance is delivered to the Trustee or a Custodian on
its behalf not later than the 90th day following the Closing Date.
(d) 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
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Group for purposes of this paragraph, and the Seller will be required to
repurchase or substitute for all of the remaining Crossed Loan(s) in the related
Crossed Group as provided in the immediately preceding paragraph unless such
other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase
Criteria and satisfy all other criteria for substitution or repurchase, as
applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing
Agreement. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Document
Defect 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 Master Servicer to determine if the
Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and
cost of such Appraisal has been approved by the Seller (such approval not to be
unreasonably withheld). To the extent that the Seller is required to purchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Purchaser continues to hold any other Crossed Loans in such Crossed Group,
neither the Seller nor the Purchaser shall enforce any remedies against the
other's Primary Collateral, but each is permitted to exercise remedies against
the Primary Collateral securing its respective Crossed Loans, including, with
respect to the Purchaser, the Primary Collateral securing the Crossed Loans
still held by the Purchaser, so long as such exercise does not materially impair
the ability of the other party to exercise its remedies against its Primary
Collateral.
If the exercise of remedies by one party would materially
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Crossed Loans held by such party, then the
Seller and the Purchaser shall forbear from exercising such remedies until the
Mortgage Loan documents evidencing and securing the relevant Crossed Loans can
be modified in a manner that complies with this Agreement to remove the threat
of material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise 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.
(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
Certificate Account, and the delivery of the Mortgage File(s) and the Servicing
File(s) for the related Qualified Substitute Mortgage Loan(s) to the Custodian
and the Master Servicer, respectively, if applicable, (i) the Trustee shall
execute and deliver such endorsements and assignments as are provided to it by
the Master Servicer, in each case without recourse, representation or warranty,
as shall be necessary to vest in the Seller, the legal and beneficial ownership
of each repurchased Mortgage Loan or substituted Mortgage Loan, as applicable,
(ii) the Trustee, the Custodian, the Master Servicer and the Special Servicer
shall each tender to the
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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 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 deleted Mortgage Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
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) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no consent,
approval, authorization or order of, registration or filing with, or notice to,
any governmental authority or court, is required, under federal or state law,
for the execution, delivery and performance by the Purchaser of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (i) any term
or provision of the Purchaser's articles of association or bylaws, (ii) any term
or provision of any material agreement, contract, instrument or indenture, to
which the Purchaser is a party or by which the Purchaser is bound, or (iii) any
law, rule, regulation, order, judgment, writ, injunction or decree
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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.
(e) 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
consideration consisting of the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would, 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.
(g) The Purchaser is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & 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 (the "Closing Documents"), in such forms as are
agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the
Initial Purchasers and their respective counsel in their reasonable discretion,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof;
(c) The Seller shall have delivered and released to the
Trustee (or a Custodian on its behalf) and the Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and the Master Servicer pursuant to Section 2 of this Agreement;
10
(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 the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date; and
(f) A letter from the independent accounting firm of Ernst &
Young LLP in form satisfactory to the Purchaser, relating to certain information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
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 duly executed by the Purchaser and the
Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that: (i)
the representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect that (i) such officer has carefully examined the Specified Portions
(as defined below) of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or the Seller or omitted or omit to state therein
a material fact necessary in order to make the statements therein
11
relating to the Mortgage Loans or the Seller, in light of the circumstances
under which they were made, not misleading, and (ii) such officer has examined
the Specified Portions of the Memorandum and nothing has come to his attention
that would lead him to believe that the Specified Portions of the Memorandum, as
of the date thereof or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein related to the Mortgage Loans or the Seller, in the light of the
circumstances under which they were made, not misleading. The "Specified
Portions" of the Prospectus Supplement shall consist of Annexes X-0, X-0, X-0,
X-0, X-0 and B thereto (insofar as the information contained in such annexes
relates to the Mortgage Loans), the diskette which accompanies the Prospectus
Supplement (insofar as such diskette is consistent with such Annexes X-0, X-0,
X-0, X-0, X-0 and B) and the following sections of the Prospectus Supplement (to
the extent they relate to the Seller or the Mortgage Loans and exclusive of any
statements in such sections that purport to summarize the servicing and
administration provisions of the Pooling and Servicing Agreement: "Summary of
Prospectus Supplement--Relevant Parties-- Mortgage Loan Sellers," "Summary of
Prospectus Supplement--The Underlying Mortgage Loans and the Mortgaged Real
Properties," "Risk Factors--Risks Related to the Underlying Mortgage Loans," and
"Description of the Mortgage Pool." The "Specified Portions" of the Memorandum
shall consist of the Specified Portions of the Prospectus Supplement and
"Summary of the Offering Memorandum--Relevant Parties--Mortgage Loan Sellers".
(e) The articles of association and by-laws of the Seller, and
a certificate of corporate existence issued by the Comptroller of the Currency
not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion
may be from in-house counsel, outside counsel or a combination thereof),
relating to certain corporate and enforceability matters and reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters , the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage Loans by the
Seller to the Purchaser.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the
Purchaser, the Underwriters, the Initial Purchasers, their respective officers
and directors, and each person, if any, who controls the Purchaser or any
Underwriter or Initial Purchaser within the meaning of either Section 15 of the
Securities Act of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, expenses (including the reasonable fees and expenses of legal
counsel), claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of
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or are based upon any untrue statement or alleged untrue statement of a material
fact contained in (A) the Prospectus Supplement, the Preliminary Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing, (B) any items similar to Computational Materials or ABS Term Sheets
forwarded by the Seller to the Initial Purchasers, or in any revision or
amendment of or supplement to any of the foregoing or (C) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B) and (C) above being
defined as the "Disclosure Material"), or (ii) arise out of or are based upon
the omission or alleged omission to state in the Disclosure Material (in the
case of Computational Materials and ABS Term Sheets, when read in conjunction
with the Prospectus Supplement, in the case of items similar to Computational
Materials and ABS Term Sheets, when read in conjunction with the Memorandum, and
in the case of any summaries, reports, documents, written or computer materials,
or other information contemplated in clause (C) above, when read in conjunction
with the Memorandum) a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; but, with respect to the Disclosure Material
described in clauses (A) and (B) of the definition thereof, only if and to the
extent that (1) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon an untrue statement or omission with
respect to the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties contained in the Data File (it being herein acknowledged
that the Data File was and will be used to prepare the Prospectus Supplement and
the Preliminary Prospectus Supplement, including without limitation Annexes X-0,
X-0, X-0, X-0, X-0 and B thereto, the Memorandum, the Diskette, any
Computational Materials and ABS Term Sheets with respect to the Registered
Certificates and any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates),
(2) any such untrue statement or alleged untrue statement or omission or alleged
omission of a material fact occurring in, or with respect to, such Disclosure
Material, is with respect to, or arises out of or is based upon an untrue
statement or omission of a material fact with respect to, the information
regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged
Properties and/or the Seller set forth in the Specified Portions (which shall
include all statements in the sections constituting the Specified Portions that
purport to summarize the terms of any intercreditor, co-lender or similar
agreement relating to a Mortgage Loan, including, without limitation, those
terms thereof that address servicing and administration) of each of the
Prospectus Supplement, the Preliminary Prospectus Supplement and the Memorandum,
or (3) any such untrue statement or alleged untrue statement or omission or
alleged omission occurring in, or with respect to, such Disclosure Material,
arises out of or is based upon any other written information concerning the
characteristics of the Mortgage Loans, the related Mortgagors or the related
Mortgaged Properties furnished to the Purchaser, the Underwriters and/or the
Initial Purchasers by the Seller; provided that the indemnification provided by
this Section 7 shall not apply to the extent that such untrue statement or
omission of a material fact was made as a result of an error in the manipulation
of, or in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related
13
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annexes X-0, X-0, X-0, X-0, X-0 and B to the Prospectus Supplement or the
Preliminary Prospectus Supplement to the extent such information was not
materially incorrect in the Data File or such Annexes X-0, X-0, X-0, X-0, X-0
and B, as applicable, including without limitation the aggregation of such
information with comparable information relating to the Other Mortgage Loans.
Notwithstanding the foregoing, the indemnification provided in this Section 7(a)
shall not inure to the benefit of any Underwriter or Initial Purchaser (or to
the benefit of any person controlling such Underwriter or Initial Purchaser)
from whom the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if (x) the subject
untrue statement or omission or alleged untrue statement or omission made in any
Disclosure Material (exclusive of the Prospectus or any corrected or amended
Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum (in either case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus or Memorandum (in either case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the written confirmation of the sale of such Certificates to such person, and
(z) in the case of a corrected or amended Prospectus or Memorandum, such
Underwriter or Initial Purchaser received written notice of such correction or
amendment prior to the written confirmation of such sale. The Seller shall,
subject to clause (c) below, reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity will be in addition to any liability which the Seller may
otherwise have.
(b) For purposes of this Agreement, "Registration Statement"
shall mean such registration statement No. 333-108125 filed by the Purchaser on
Form S-3, including without limitation exhibits thereto and information
incorporated therein by reference; "Base Prospectus" shall mean the prospectus
dated December 6, 2004, as supplemented by the prospectus supplement dated
December 15, 2004 (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus") relating to the Registered Certificates, including
all annexes thereto; "Preliminary Prospectus Supplement" shall mean the
prospectus supplement dated December 6, 2004 relating to the Registered
Certificates, including all annexes thereto; "Memorandum" shall mean the
offering memorandum dated December 15, 2004, relating to the Non-Registered
Certificates, including all exhibits thereto; "Registered Certificates" shall
mean the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-1A,
Class A-J, Class B, Class C and Class D Certificates; "Non-Registered
Certificates" shall mean the Certificates other than the Registered
Certificates; "Computational Materials" shall have the meaning assigned thereto
in the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
Letters, the "No-Action Letters"); "Diskette" shall mean the diskette or compact
disc attached to each of the Prospectus and the Memorandum; and "Data File"
shall mean the compilation of information and data regarding the
14
Mortgage Loans covered by the agreed upon procedures letters dated December 6,
2004 and December 15, 2004 and rendered by Ernst & Young LLP, as the case may be
(a "hard copy" of which Data File was initialed on behalf of the Seller and the
Purchaser).
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under this Section 7 (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters
or the Initial Purchasers, as the case may be, representing all the indemnified
parties under this Section 7 who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written
15
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying party assumes
the defense of any proceeding, it shall be entitled to settle such proceedings
with the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceedings that have been asserted against the indemnified
party in such proceeding by the other parties to such settlement, which release
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party without the consent of
the indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations, taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be
just and equitable if contribution pursuant to Section 7(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 7(d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to
16
the extent that the indemnifying party will be ultimately obligated to pay such
expenses. If any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party that received such payment shall promptly refund the amount so paid to
the party which made such payment. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Purchaser, the Underwriters, the Initial Purchasers, any of their respective
directors or officers, or any person controlling the Purchaser, the Underwriters
or the Initial Purchasers, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any
other provision of this Agreement, the Underwriters, the Initial Purchasers and
their directors, officers and controlling parties shall be third-party
beneficiaries of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the PNC Bank Mortgage Loan
Balance represents as of the Cut-off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (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 and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters and the Initial Purchasers; provided, however, Seller shall pay (or
shall reimburse the Purchaser to the extent that the Purchaser has paid) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof with respect to such Seller's
Mortgage Loans. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
17
SECTION 9. 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 Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 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, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall
provide the Seller with all forms of Disclosure Materials (including the final
form of the Memorandum and the preliminary and final forms of the Prospectus
Supplement) promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or
18
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee).
SECTION 13. 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 14. 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 15. 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 16. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
which obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party which commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 17. 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
19
time to time, reasonably request in order to effectuate the purposes and to
carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations
of the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the Purchaser, except that any person into which
the Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters and the Initial Purchasers (as intended third party
beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, the Initial Purchasers and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall
cooperate with Ernst & Young LLP in making available all information and taking
all steps reasonably necessary to permit such accountants to deliver the letters
required by the Underwriting Agreement.
SECTION 21. 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.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
20
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/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
000 Xxxxx Xxxxxx, One PNC Plaza
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.:
Telephone No.:
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth
in the Mortgage Loan Schedule was true and correct in all material
respects as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan
complied in all material respects with, or was exempt from, all
requirements of federal, state or local law relating to the origination
of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to
the Purchaser, the Seller had good and marketable 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. 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 if such Mortgage Loan is a Mortgage Loan as to which
a portion of the funds disbursed are 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 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 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.
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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 first priority 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 set
forth in paragraph (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 due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially 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 paragraph (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) and (f) if such Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the Mortgage for such other
Mortgage Loan, 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. Except with respect to
cross-collateralized
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and cross-defaulted Mortgage Loans, there are no mortgage loans that
are senior or pari passu with respect to the related Mortgaged Property
or such Mortgage Loan.
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 the 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, 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 priority 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 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 affect materially and
adversely 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 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,
I-3
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 without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee
of record; 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; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not
available) (a) access to a public road (except as provided below) or
(b) against any loss due to encroachments of any material portion of
the improvements thereon.
13. Except as provided below, 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 initial
principal balance of the Mortgage Loan, and in any event, the amount
necessary to prevent operation of any co-insurance provisions, and,
except if such Mortgaged Property is operated as a mobile home park,
such Mortgaged Property is also covered by business interruption or
rental loss insurance, in an amount at least equal to 12 months of
operations of the related Mortgaged Property (or in the case of a
Mortgaged Property without any elevator, 6 months); and, except as
provided below, 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; 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; and except for certain amounts not greater than
amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar Mortgage Loan and
which are set forth in the related Mortgage, any insurance proceeds in
respect of a casualty loss, will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property or (ii)
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 institutional lenders for similar loans. The
Mortgaged Property is also covered by comprehensive general liability
insurance against claims for personal and
I-4
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property, in an amount customarily required by
prudent institutional lenders.
The insurance policies contain a standard mortgagee clause
naming the Seller, 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 30 days prior written notice to the Mortgagee (or,
with respect to non-payment, 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. Except as provided below, (a) other than payments due but
not yet 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 institutional lenders, 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 paragraphs of
this Schedule I or in any paragraph of Schedule II, and (b) 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 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been, 30
days or more past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the
rate at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default interest,
late charges or prepayment premiums) of such Mortgage Loan is a fixed
rate.
17. Each related Mortgage does not provide for or permit,
without the prior written consent of the holder of the Mortgage Note,
each related Mortgaged Property to secure any other promissory note or
obligation except as expressly described in such Mortgage.
I-5
18. Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either
(a) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect the portion of such commercial or
multifamily residential property that consists of an interest in real
property (within the meaning of Treasury Regulations Sections
1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as defined
below), or (b) the fair market value of the interest in real property
which secures such Mortgage Loan was at least equal to 80% of the
principal amount of the 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 the 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. The Mortgage
Loan documents with respect to each Defeasance Loan do not allow such
Defeasance Loan to be defeased prior to two years after the Startup
Day.
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, and the Seller,
having made no independent inquiry other than to review the report(s)
prepared in connection with the assessment(s), updates or transaction
screens referenced herein, has no actual knowledge and has received no
notice of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed
in such report(s). If any such environmental report identified any
Recognized Environmental Condition (REC), as that term is defined in
the Standard Practice for Environmental Site Assessments: Phase I
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 either (i)
an escrow greater than 100% of the amount identified as necessary by
the environmental consulting firm to address the REC is held by the
Seller for purposes of effecting same (and the borrower has covenanted
in the Mortgage Loan documents to perform such work), (ii) the related
borrower 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
I-6
regulation, (iii) the borrower has provided an environmental insurance
policy, (iv) an operations and maintenance plan has been or will be
implemented or (v) such conditions or circumstances were investigated
further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or
remediation. 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. Annex A to this Schedule I sets
forth those Mortgage Loans (if any) as to which the related borrower
obtained a secured creditor impaired property 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
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 law affecting the right 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, and no
Mortgaged Property is the subject of, any state or federal bankruptcy
or insolvency proceeding.
22. Each Mortgage Loan is a whole loan and contains no equity
participation by the lender or shared appreciation feature and does not
provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or,
other than the ARD Loans, provide for negative amortization. The Seller
holds no preferred equity interest.
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 of a member, general partner or
shareholder of the related Borrower and 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 Crossed 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 within the parameters of
paragraph (26) below), or (b) the related Mortgaged Property is
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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. Except as provided below, 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) U.S. Treasury obligations sufficient to pay the Mortgage
Loans (or portions thereof) in accordance with their terms, (b) where a
release of the portion of the Mortgaged Property was contemplated at
origination and such portion was not considered material for purposes
of underwriting the Mortgage Loan, (c) where release is conditional
upon the satisfaction of certain underwriting and legal requirements
and the payment of a release price that represents adequate
consideration for such Mortgaged Property or the portion thereof that
is being released, or (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 to 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. Except as provided below, to the Seller's actual
knowledge, based upon a letter from governmental authorities, a legal
opinion, an endorsement to the related title policy, or based upon
other due diligence considered reasonable by prudent commercial conduit
mortgage lenders 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,
I-8
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 any material and adverse extent (unless
affirmatively covered by title insurance).
29. With respect to at least 95% of such Seller's Mortgage
Loans (by balance) having a Cut-off Date Balance in excess of 1% of the
Initial Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or
Mortgaged Properties, as applicable, and assets incidental to its
ownership and operation of such Mortgaged Property, and to hold itself
out as being a legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to
the loan documents, directly or indirectly, by the Seller to the
Mortgagor and, to the Seller's actual knowledge, no funds have been
received from any Person other than the Mortgagor, for or on account of
payments due on the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received
notice, against the Mortgagor or the related Mortgaged Property the
adverse outcome of which could reasonably be expected to materially and
adversely affect such Mortgagor's ability to pay principal, interest or
any 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. The Mortgage Loan and the interest (exclusive of any
default interest, late charges or prepayment premiums) contracted for
complied as of the date of origination with, or was exempt from,
applicable state or federal laws, regulations and other requirements
pertaining to usury.
34. The related Mortgage Note is not secured by any collateral
that secures a Mortgage Loan that is not in the Trust Fund and each
Mortgage Loan that is cross-collateralized is cross-collateralized only
with other Mortgage Loans sold pursuant to this Agreement.
I-9
35. The improvements located on the Mortgaged Property are
either not located in a federally designated special flood hazard area
or the Mortgagor is required to maintain or the mortgagee maintains,
flood insurance with respect to such improvements and such policy is in
full force and effect.
36. 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, are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies in connection therewith.
37. 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, the related lessee, franchisor or operator was not in
possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be),
servicing and collection practices used by the Seller with respect to
the Mortgage Loan have been in all material respects legal and have met
customary industry standards for servicing of commercial mortgage loans
for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged
Property with respect to which includes a Ground Lease, the related
Mortgagor (or its affiliate) has title in the fee simple interest in
each related Mortgaged Property.
40. Except as provided below, 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. Furthermore, except as provided below, the Mortgage
Loan documents for each Mortgage Loan provide that the related
Mortgagor shall be liable to the lender for losses incurred due to the
misapplication or misappropriation of rents collected in advance or
received by the related Mortgagor after the occurrence of an event of
default and not paid to the Mortgagee or applied to the Mortgaged
Property in the ordinary course of business, misapplication or
conversion by the Mortgagor of insurance proceeds or condemnation
awards or breach of the environmental covenants in the related Mortgage
Loan documents.
41. Subject to the exceptions set forth in paragraph (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.
I-10
42. 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).
43. If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan permits
defeasance (a) no earlier than two years after the Closing Date, and
(b) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled
payments under the Mortgage Note. In addition, if such Mortgage
contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that
the related Mortgagor must deliver (or otherwise, the Mortgage Loan
documents contain certain provisions pursuant to which the lender can
require) (i) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan
for the remainder of its term, (ii) an Opinion of Counsel that the
defeasance complies with all applicable REMIC Provisions, and (iii)
assurances from the Rating Agencies that the defeasance will not result
in the withdrawal, downgrade or qualification of the ratings assigned
to the Certificates. Notwithstanding the foregoing, some of the
Mortgage Loan documents may not affirmatively contain all such
requirements, but such 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.
44. 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.
45. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
46. 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 after the Cut-off Date of the related Mortgage Loan).
I-11
ANNEX A (TO SCHEDULE I)
Loan no. 000 Xxxxx Xxxx Xxxxxxxxxx
X-00
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 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 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 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 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 by it having the right to hold and
disburse such proceeds as repair or restoration progresses, 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 any commercial mortgage lender, taking into account the
relative duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial lender.
11. The ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease for any
reason, including the rejection of the Ground Lease in bankruptcy.
II-2
III-1
NY1 5639434v5
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation #19
----------------------------------------------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx Xxxxxxxxxx Xx Xxxxx X environmental site assessment was performed and no
Phase I environmental report was obtained; however, Belle Isle is
covered by a secured creditor impaired property policy.
----------------------------------------------------------------------------------------------------------------------
Representation #23
--------------- --------------------------------- --------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
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) a direct controlling equity interest in
the related Borrower of 49% (or 50% with respect to the Xxxxxxx
Square loan) or less is transferred or sold or (ii) a direct
controlling equity interest in the related Borrower of any amount is
transferred by virtue of an involuntary change in ownership
resulting from a death or physical or mental disability.
----------------------------------------------------------------------------------------------------------------------
III-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
LOAN
CONTROL MORTGAGE LOAN MORTGAGE GROUP
NUMBER NUMBER LOAN SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
--------------------------------------------------------------------------------------------------------------------------------
12 940951069 PNC 2 The Lodge at Baybrook 00000 Xxxxxxxx Xxxxx Xxxxxxx
25 940951164 PNC 1 Westwood Corporate Center II & 8603 & 8605 Westwood Center Drive Vienna
III
28 940951130 PNC 1 California National Guard 0000 Xxxxxx Xxxx Xxxxxxxxxx
Headquarters
50 940951110 PNC 1 Xxxxxxx Xxxxx 0000 Xxxx Xxxxx Xxxx Xxxxx
00 940951183 PNC 1 Oakbrook and Campus South 0000 Xxxxxxx Xxxxx Xxxxx and 0000 Xxxxxx
Xxxxxx Xxxxxxx Xxxxx
55 940951094 PNC 1 Courtyard by Marriott 1605 Xxxxxxx Xxxxx Boulevard Daytona
58 940950927 PNC 0 Xxxxxxx Xxxxxx Retail Center 0000-0000 XX Xxxxxxx Xxxx Xxx'x Summit
65 940950639 PNC 0 Xxx Xxxx Xxxxxxxx Xxxxxx 00000-00000 Xxxxx Xxx Xxxxxxxxxx Xxxxxx Xxxx
68 940950770 PNC 1 Canyon Trails 380, 500, And 000 X. Xxxxxxxx Xxxx Goodyear
93 940951140 PNC 1 CVS Pharmacy 0000 X. Xxxxxxxx Xxxxxx Xxxxxx
98 940951173 PNC 1 Monticello Village 00000 X. 00xx Xxxxxxx Shawnee
105 940951135 PNC 0 Xxxxxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxx
106 940951076 PNC 0 Xxxxx Xxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxxxxxx Oklahoma
City
CONTROL MORTGAGE LOAN ZIP
NUMBER NUMBER STATE CODE
-----------------------------------------
12 940951069 TX 77546
25 940951164 VA 22182
28 940951130 CA 95827
50 940951110 NE 68114
53 940951183 VA 20191
55 940951094 FL 32114
58 940950927 MO 64086
65 940950639 MO 64155
68 940950770 AZ 85338
93 940951140 TX 75224
98 940951173 KS 66226
105 940951135 KY 40507
106 940951076 OK 73118
CROSS ADDITIONAL
CUT-OFF DATE COLLATERALIZED MASTER INTEREST INTEREST RESERVE
CONTROL PRINCIPAL (MORTGAGE SERVICING ARD LOAN RATE AFTER MORTGAGE LOAN
NUMBER BALANCE LOAN GROUP) MORTGAGE RATE FEE RATE (YES/NO)? ARD ARD (YES/NO)?
-----------------------------------------------------------------------------------------------------------------------------
12 20,500,000.00 No 5.4900% 0.0500% Yes
25 16,400,000.00 No 5.2100% 0.1000% Yes
28 14,800,000.00 No 5.0700% 0.1000% Yes
50 9,900,000.00 No 5.2900% 0.1000% Yes
53 9,500,000.00 No 5.0300% 0.1000% Yes
55 9,100,000.00 No 5.9700% 0.1000% Yes
58 8,881,955.39 No 5.5300% 0.0500% Yes
65 8,000,000.00 No 5.4700% 0.0800% Yes
68 7,566,708.73 No 5.5000% 0.1000% Yes
93 4,874,587.84 No 5.4300% 0.0500% Yes
98 4,080,000.00 No 5.4500% 0.1200% Yes
105 2,560,000.00 No 5.5300% 0.0500% Yes
106 2,170,759.48 No 5.7100% 0.1000% Yes
CONTROL GRACE
NUMBER LOAN TYPE PERIOD
-----------------------------------------
12 Partial IO/Balloon 5
25 Partial IO/Balloon 5
28 Partial IO/Balloon 5
50 Partial IO/Balloon 5
53 Partial IO/Balloon 5
55 Balloon 5
58 Balloon 5
65 Partial IO/Balloon 5
68 Balloon 5
93 Balloon 5
98 Balloon 5
105 Balloon 5
106 Balloon 5
A-2
PERIODIC ORIGINAL STATED REMAINING
PAYMENT ON TERM TO ORIGINAL TERM TO
MORTGAGE MORTGAGE LOAN SCHEDULED FIRST DUE MATURITY AMORTIZATION MATURITY
CONTROL LOAN LOAN GROUP MATURITY DATE AFTER / ARD TERM / ARD
NUMBER NUMBER SELLER NUMBER LOAN / PROPERTY NAME DATE CLOSING (MONTHS) (MONTHS) (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
12 940951069 PNC 2 The Lodge at Baybrook 10/01/14 96,913.75 120 360 118
25 940951164 PNC 1 Westwood Corporate Center II & 11/01/14 73,576.78 120 360 119
III
28 940951130 PNC 1 California National Guard 11/01/09 64,614.33 60 360 59
Headquarters
50 940951110 PNC 1 Embassy Plaza 11/01/11 45,097.25 84 360 83
53 940951183 PNC 1 Oakbrook and Campus South 11/01/11 41,148.19 84 360 83
55 940951094 PNC 1 Courtyard by Marriott 12/01/14 58,464.66 120 300 120
58 940950927 PNC 0 Xxxxxxx Xxxxxx Retail Center 10/01/14 50,700.87 120 360 118
65 940950639 PNC 1 New Xxxx Shopping Center 12/01/14 37,682.22 120 360 120
68 940950770 PNC 1 Canyon Trails 11/01/14 43,010.02 120 360 119
93 940951140 PNC 1 CVS Pharmacy 11/01/14 27,494.16 120 360 119
98 940951173 PNC 1 Monticello Village 01/01/15 23,037.96 120 360 120
105 940951135 PNC 0 Xxxxxxxxx Xxxxxx Apartments 12/01/14 14,583.62 120 360 120
106 940951076 PNC 0 Xxxxx Xxxx Xxxxxxxxxx 10/01/14 12,637.50 120 360 118
STATED
REMAINING
AMORTIZATION
CONTROL TERM
NUMBER (MONTHS)
-------------------
12 360
25 360
28 360
50 360
53 360
55 300
58 358
65 360
68 359
93 359
98 360
105 360
106 358
ESCROWED
ESCROWED ESCROWED REPLACEMENT ESCROWED
ANNUAL REPLACEMENT RESERVES TI/LC
DEFEASANCE REAL ESCROWED RESERVES CURRENT RESERVES
CONTROL LOAN BORROWER'S PROPERTY PROPERTY LOCKBOX ESTATE ANNUAL INITIAL ANNUAL INITIAL
NUMBER (YES/NO)? INTEREST SIZE SIZE TYPE (YES/NO)? TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT
------------------------------------------------------------------------------------------------------------------------------------
12 No Fee Simple 322 Units No 509,848 80,702 475,000 80,500 NAP
25 Yes Fee Simple 123,516 SF No 0 0 0 0 200,000
28 Yes Fee Simple 110,500 SF Yes, 210,837 37,605 0 22,100 0
In-Place
Hard
50 Yes Fee Simple 131,882 SF Yes, 214,420 24,035 0 26,376 0
In-Place
Hard
53 Yes Fee Simple 85,799 SF No 105,405 29,550 0 20,093 0
55 Yes Leasehold 122 Rooms No 0 0 0 0 (Note 4) NAP
58 Yes Fee Simple 59,438 SF No 161,040 15,518 0 22,550 0
65 Yes Fee Simple 74,774 SF Yes, 109,304 30,912 0 11,216 0
Springing
Hard
68 No Fee Simple 34,998 SF No 76,899 16,536 0 5,256 0
93 Yes Fee Simple 12,739 SF Yes, 0 0 0 0 0
Springing
Hard
98 Yes Fee Simple 29,159 SF No 133,741 13,377 0 4,380 0
105 Yes Fee Simple 48 Units No 7,945 12,350 15,000 16,125 NAP
106 Yes Fee Simple 96 Units No 19,413 16,765 0 26,496 NAP
ESCROWED
TI/LC
RESERVES
CURRENT
CONTROL ANNUAL
NUMBER DEPOSIT
------------------
12 NAP
25 75,000
28 0
50 200,000
53 30,000
55 NAP
58 15,000
65 0
68 24,000
93 52,600
98 12,000
105 NAP
106 NAP
A-3
INITIAL
DEFERRED INITIAL
MAINTENANCE ENVIRONMENTAL HOLDBACK
CONTROL NUMBER DEPOSIT DEPOSIT RESERVE LOC ENVIRONMENTAL INSURANCE POLICY
------------------------------------------------------------------------------------------------------------------------------
12 Xx
00 Xx
00 Xx
00 Xx
00 Xx
55 No
58 20,313 3,125 Xx
00 Xx
00 Xx
00 Xx
00 Xx
105 No
106 No Yes, environmental insurance obtained in lieu of
Phase 1 Report
A-4
