EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of March 14, 2007, between PNC BANK, NATIONAL ASSOCIATION ("PNC"), as seller
(the "Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated as of March 1, 2007, among CCMSI, as depositor, Midland
Loan Services, Inc., Wachovia Bank, National Association and Capmark Finance
Inc., as master servicers (each, a "Master Servicer" and, together, the "Master
Servicers"), LNR Partners, Inc., as special servicer (the "Special Servicer"),
Xxxxx Fargo Bank, National Association, as trustee (the "Trustee") and LaSalle
Bank National Association, as certificate administrator (the "Certificate
Administrator"). Capitalized terms used herein (including the schedules attached
hereto) but not defined herein (or in such schedules) have the respective
meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
Deutsche Bank Securities, Inc. ("DBS"), LaSalle Financial Services, Inc., RBC
Capital Markets Corporation and PNC Capital Markets LLC (collectively, the
"Dealers"), pursuant to an underwriting agreement dated as of the date hereof
(the "Underwriting Agreement"), between CCMSI and the Dealers. The Publicly
Offered Certificates are more particularly described in a prospectus supplement
dated March 14, 2007 (the "Prospectus Supplement") and the accompanying base
prospectus dated March 5, 2007 (the "Base Prospectus" and, together with the
Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and DBS, pursuant to
a certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI, CGMI and DBS. The Privately Offered
Certificates are more particularly described in an offering memorandum dated
March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., Xxxxx'x Investors Service, Inc. and/or Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx Companies, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $820,868,219 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The Seller Mortgage Loan
Balance, together with the aggregate principal balance of the Other Mortgage
Loans as of the Cut-off Date (after giving effect to any payments due on or
before such date whether or not such payments are received), is expected to
equal an aggregate principal balance (the "Cut-off Date Pool Balance") of
$6,599,815,279 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on March 29, 2007 or such other date
as shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the Mortgage
Loans shall consist of a cash amount, payable in immediately available funds, as
reflected on the settlement statement agreed to by the Seller and the Purchaser,
which amount shall include interest accrued on the Seller Mortgage Loan Balance
for the period from and including the Cut-off Date up to but not including the
Closing Date. The Aggregate Purchase Price shall be reduced, with respect to the
Initial Date Deposit Loans, by their respective Initial Date Deposits. For
purposes of the foregoing, the Initial Date Deposit Loans are those Mortgage
Loans known as (and identified on the Mortgage Loan Schedule as) The Atlantic
Building, The Shoppes at South Bay (Walmart) and Grand Flamingo.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the Seller of the Aggregate Purchase Price and satisfaction or waiver of the
other conditions to closing that are for the benefit of the Seller, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (except as set forth in this Agreement), all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, on a servicing-released basis,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance and
any escrow, reserve or comparable accounts related to the Mortgage Loans,
subject, in the case of any Mortgage Loan that is part of a Loan Combination, to
the rights of the holder(s) of any other mortgage loan(s) in the related Loan
Combination in such proceeds and reserve or comparable accounts, and further
subject to the understanding that the Seller will sell
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certain servicing rights to the applicable Master Servicer pursuant to that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date,
between such Master Servicer and the Seller, and may require that a particular
primary servicer remain in place with respect to any or all of the Mortgage
Loans.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver or cause to be delivered to the Trustee (with a copy
(except in the case of an Outside Serviced Trust Mortgage Loan or any letter of
credit referred to in clause (xi)(D) below) to the applicable Master Servicer
and the Special Servicer within ten (10) Business Days after the Closing Date)
the documents and instruments specified below under clauses (i), (ii), (vii),
(ix)(A) and (xi)(D) and shall, not later than the date that is 30 days after the
Closing Date, deliver or cause to be delivered to the Trustee (with a copy to
the applicable Master Servicer) the remaining documents and instruments
specified below, in each case with respect to each Mortgage Loan that is a
Serviced Trust Mortgage Loan (the documents and instruments specified below,
collectively, the "Mortgage File"). The Mortgage File for each Serviced Trust
Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage
Loan, the original executed Mortgage Note including any power of attorney
related to the execution thereof, together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of "Xxxxx Fargo Bank, National Association, as trustee for the
registered holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Serviced Non-Trust Mortgage
Loan, a copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
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(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "Xxxxx Fargo Bank,
National Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iii) above), in favor of "Xxxxx Fargo Bank, National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or specimen version of, or a marked commitment
for, the policy that has been executed by an authorized representative of
the title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or
other evidence of filing reasonably satisfactory to the Purchaser of any
prior UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing office;
and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of CD 2007-CD4 Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD 2007-CD4"
(and, in the case of any A/B Loan Combination, also on behalf of the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as assignee, or
in blank;
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(ix) an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating to a
Trust Mortgage Loan (with the original of any such letter of credit to be
delivered to the applicable Master Servicer).
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
the other Crossed Loan(s) in such Crossed Group, to the extent that such same
document is also required to be part of the Mortgage File for such other Crossed
Loan(s) in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans), promptly (and
in any event, as to any such Mortgage Loan, within 90 days following the later
of (i) the Closing Date and (ii) the delivery of the related Mortgage(s),
Assignment(s) of Leases, recordable documents, and UCC Financing Statements to
the Trustee complete (if and to the extent necessary) and cause to be submitted
for recording or filing, as the case may be, in favor of the Trustee in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, referred to in Sections 2(c)(iv)(A), (B) and (C) and each assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the recorded
original of each such assignment of recordable documents to be delivered to the
Trustee or its designee following recording, and shall cause the file copy of
each such UCC Financing Statement to be delivered to the Trustee or its designee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain therefrom a
certified copy of the recorded original, which shall be delivered to the Trustee
or its designee. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller
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shall promptly prepare or cause to be prepared a substitute therefor or cure
such defect, as the case may be, and thereafter cause the same to be duly
recorded or filed, as appropriate. The Seller shall be responsible for the
out-of-pocket costs and expenses of the Recording/Filing Agent in connection
with its performance of the recording, filing and delivery obligations
contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications
and internal correspondence, credit underwriting or due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) and that are not required to be part of the
Mortgage File in accordance with the definition thereof (including, without
limitation, any original letters of credit relating to any Mortgage Loan); and
(ii) within two (2) Business Days after the Closing Date, any and all escrow
amounts and reserve amounts in the Seller's possession or under its control that
relate to the Mortgage Loans (other than an Outside Serviced Trust Mortgage
Loan).
(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 (other than an
Outside Serviced Trust Mortgage Loan). Without limiting the generality of the
foregoing, if a draw upon a letter of credit is required before its transfer to
the Trust Fund can be completed, the Seller shall draw upon such letter of
credit for the benefit of the Trust pursuant to written instructions from the
applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized
and validly existing and in good standing under the laws of the United
States and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement
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may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
in general, as they may be applied in the context of the insolvency of a
national banking association, and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law), and by public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the financial
condition or the operations of the Seller or its properties (taken as a
whole) or have consequences that would materially and adversely affect its
performance hereunder;
(v) The Seller is not a party to or bound by any agreement
or instrument or subject to any other corporate restriction or any
judgment, order, writ, injunction, decree, law or regulation that would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or that requires the consent of any third person to
the execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions involving the
Seller contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
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(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for
consideration contemplated by this Agreement. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedules III and IV. References in this Agreement to "Breach" mean a breach of
any such representations and warranties made pursuant to this Section 3(b) with
respect to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the applicable Master Servicer for deposit into its Collection Account, any
Substitution Shortfall Amount in connection therewith; provided that, if a
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, then unless such
Document Defect or Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, such Seller shall have an additional 90 days to complete such cure
(or, failing such cure, to repurchase or substitute for the related Mortgage
Loan); and provided, further, that with respect to such additional 90-day period
the Seller shall have delivered an officer's certificate to the Trustee setting
forth what actions the Seller is pursuing in connection with the cure thereof
and stating that the Seller anticipates that such Document Defect or Breach will
be cured within the additional 90-day period; and provided, further, that if the
cure of any Document Defect or Breach would require an expenditure on the part
of the Seller in excess of $10,000, then the Seller may, at its option, within
the time period provided above, elect to purchase or replace the affected
Mortgage Loan in accordance with this Section 3 without
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attempting to cure such Document Defect or Breach, as the case may be. For a
period of two years from the Closing Date, so long as there remains any Mortgage
File relating to a Mortgage Loan as to which there is an uncured Document Defect
that, to the Seller's knowledge, existed as of the Closing Date, and that
materially and adversely affects the value of the applicable Mortgage Loan or
the interests of the Certificateholders therein, the Seller shall provide the
officer's certificate to the Trustee described above as to the reasons such
Document Defect remains uncured and as to the actions being taken to pursue
cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of or
substitution for the affected Crossed Loan only, including, without limitation,
any modification required with respect to such repurchase or substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or substitution for
the affected Crossed Loan only shall satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein or in the
Pooling and Servicing Agreement. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the
applicable Master Servicer to determine if the Crossed Loan Repurchase Criteria
have been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld). To the
extent that the Seller is required to purchase or substitute for a Crossed Loan
hereunder in the manner prescribed above while the Purchaser continues to hold
any other Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other's Primary Collateral, but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Crossed Loans, including, with respect to the Purchaser, the
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Primary Collateral securing the Crossed Loans still held by the Purchaser, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document Defect or Breach
shall materially and adversely affect the value of the related Mortgage Loan or
the interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable,
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(i) the Trustee shall execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller, the legal and beneficial ownership of each repurchased Mortgage Loan
or replaced Mortgage Loan, as applicable, (ii) the Trustee, the applicable
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the applicable Master Servicer and the Special Servicer shall
release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations
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under this Agreement, or which, if not obtained would not have a materially
adverse effect on the ability of such Purchaser to perform its obligations
hereunder.
(e) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (i) any term
or provision of the Purchaser's certificate of incorporation or bylaws, (ii) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Purchaser or its
assets, which default might have consequences that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Purchaser or its properties
or have consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the validity of this Agreement or any action taken in
connection with the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser to enter into
and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement
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(the "Closing Documents"), in such forms as are agreed upon and acceptable to
CCMSI, the Seller, the Dealers and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable Master
Servicer, respectively, all documents represented to have been or required to be
delivered to the Trustee and such Master Servicer on or before the Closing Date
pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall each have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) The Underwriters and Initial Purchasers shall have received
letters from an independent accounting firm reasonably acceptable to CCMSI and
the Seller in form satisfactory to CCMSI, relating to certain information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus,
the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement and
the Indemnification Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date,
subject, in the case of the representations and warranties made by the Seller
pursuant to Section 3(b) of this Agreement, to the exceptions to such
representations and warranties set forth in Schedules III and IV to this
Agreement; and (ii) the Seller has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part that are required
under this Agreement to be performed or satisfied at or prior to the Closing
Date;
(c) An officer's certificate from the Seller, dated the Closing
Date, and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or
13
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) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the Dealers and
the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies;
(e) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage Loans by the
Seller to the Purchaser; and
(f) A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
reasonably satisfactory to the Seller and its counsel, dated the Closing Date
and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Seller Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding, to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans, the Other Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and other customary
offering materials, including the cost of obtaining any "comfort letters" with
respect to such items; (vii) the reasonable out-of-pocket costs and expenses in
connection with the qualification or exemption of the Certificates under state
securities or "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any "Blue Sky" survey and in connection with any determination of
the eligibility of the Certificates for investment by institutional investors
and the preparation of any legal investment survey; (viii) the expenses of
printing any such "Blue Sky" survey and legal investment survey; and (ix) the
reasonable fees and disbursements of counsel to the Dealers. All other costs and
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
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SECTION 8. Grant of a Security Interest. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement, and in connection therewith the Seller authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code financing
statements.
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
15
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
which obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party which commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the
16
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Purchaser and their permitted successors
and assigns. No holder or beneficial owner of a Certificate shall be deemed a
permitted successor or assign to the Purchaser solely by reason of its interest
in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(d)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate with accountants designated by CCMSI and reasonably acceptable to the
Seller in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge", such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PNC BANK MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
PNC Bank, National Association
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxx Xxxx
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
I-1
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan, including those
pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application
of any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other Person.
I-2
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there is no
valid offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each case,
with respect to the enforceability of any provisions requiring the payment
of default interest, late fees, Additional Interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the legal,
valid and binding assignment from the Seller, except as such enforcement
may be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage Loan is
part of a Loan Combination, the lien of the Mortgage for the related
Non-Trust Loan(s). Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of a Loan
Combination, there are no mortgage loans that are senior or pari passu in
right of
I-3
payment with the subject Mortgage Loan that are secured by the related
Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to
the extent that possession or control of such items or actions other than
the filing of UCC Financing Statements are required in order to effect
such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with, in the case of taxes and governmental
assessments not presently due and payable, future escrow payments required
to be made pursuant to the related Mortgage Loan documents) to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage loans by
the Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would materially and adversely affect the
value of such Mortgaged Property as security for the Mortgage Loan, and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part
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of a Loan Combination, in the original (aggregate, if applicable)
principal amount of the other mortgage loan(s) constituting the related
Loan Combination) after all advances of principal (as set forth on the
Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in
the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its
successors or assigns is the named insured of such policy; such policy is
assignable in connection with the assignment of the related Mortgage Note
without consent of the insurer and will inure to the benefit of the
Trustee as mortgagee of record; such policy is in full force and effect
upon the consummation of the transactions contemplated by this Agreement;
all premiums thereon have been paid; no material claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; and such policy
contains no material exclusions for, or affirmatively insures (except for
any Mortgaged Property located in a jurisdiction where such insurance is
not available) (a) access to a public road and (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the original
principal balance of the Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting
the related Loan Combination), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such
Mortgaged Property is operated as a manufactured housing community, such
Mortgaged Property is also covered by business interruption or rental loss
insurance, in an amount at least equal to twelve (12) months of operations
of the related Mortgaged Property (or in the case of a Mortgaged Property
without any elevator, six (6) months); and as of the Cut-off Date, to the
actual knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent by a commercial and multifamily mortgage lending
institution with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in
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respect of a casualty loss are required to be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property or
(ii) to the reduction of the outstanding principal balance of the Mortgage
Loan, subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent commercial and multifamily mortgage lending institutions
for similar loans. The Mortgaged Property is also covered by comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent commercial and
multifamily mortgage lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to non-payment, ten (10) days prior written notice to
the Mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage requires that the Mortgagor maintain insurance as described above
or permits the Mortgagee to require insurance as described above, and
permits the Mortgagee to purchase such insurance at the Mortgagor's
expense if Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage
I-6
Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the
prior written consent of the holder of the Mortgage Note, any related
Mortgaged Property to secure any other promissory note or obligation
except as expressly described in such Mortgage or other Mortgage Loan
document.
18. Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to Treasury
regulations Sections 1.860-G(2)(a)(3) and 1.860G(2)(f)(2)), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii)
as of the Closing Date. For purposes of the previous sentence, (A) the
fair market value of the referenced interest in real property shall first
be reduced by (1) the amount of any lien on such interest in real property
that is senior to such Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is on a parity with the
Mortgage Loan, and (B) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (1) such Mortgage Loan was
modified after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (2) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected
to a "significant modification" after the date of its origination and at a
time when such Mortgage Loan was not in default or when default with
respect to such Mortgage Loan was not reasonably foreseeable, the Testing
Date shall be the date upon which the latest such "significant
modification" occurred.
19. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting
firm independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such environmental
site assessments, updates and transaction screens, and the Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that
I-7
term is defined in the Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process Designation: E
1527-00, as recommended by the American Society for Testing and Materials
(ASTM), with respect to the related Mortgaged Property and the same have
not been subsequently addressed in all material respects, then one or more
of the following is true: (i) an escrow greater than 100% of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
related Mortgagor has covenanted in the Mortgage Loan documents to perform
such work); (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation; (iii) the related Mortgagor has provided
a lender's environmental insurance policy (in which case such Mortgage
Loan is identified on Annex A to this Schedule I); (iv) an operations and
maintenance plan has been or will be implemented; (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; or (vi) the Mortgagor or other responsible
party has obtained a no further action letter or other evidence that
governmental authorities have no intention of taking any action or
requiring any action in respect of the REC. All environmental assessments
or updates that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance carrier issuing
such policy prior to the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains no
equity participation by the Seller or shared appreciation feature and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or, other
than the ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest in the related Mortgagor.
23. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of
I-8
property comparable to the related Mortgaged Property, each related
Mortgage or loan agreement contains provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage or loan agreement, (a) the
related Mortgaged Property, or any controlling interest in the related
Mortgagor, is directly transferred or sold (other than by reason of family
and estate planning transfers, transfers by devise, descent or operation
of law upon the death or incapacity of a member, general partner or
shareholder of the related Mortgagor, transfers of less than a controlling
interest in a mortgagor, issuance of non-controlling new equity interests,
transfers among existing members, partners or shareholders in the
Mortgagor or an affiliate thereof, transfers among affiliated Mortgagors
with respect to cross-collateralized and cross-defaulted Mortgage Loans or
multi-property Mortgage Loans or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan, such as pledges
of ownership interest that do not result in a change of control) or a
substitution or release of collateral is effected other than in the
circumstances specified in representation (26) below, or (b) the related
Mortgaged Property is encumbered in connection with subordinate financing
by a lien or security interest against the related Mortgaged Property,
other than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms
of the related Mortgage Note and Mortgage(s) have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the security
intended to be provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior
to the related origination date.
26. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage
in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, and, except with respect to Mortgage Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the
Mortgage Loan, (c) where release is conditional upon the satisfaction of
certain underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged Property
or the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in compliance with
REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will not have
a material adverse affect on the underwritten value of the security for
the Mortgage Loan or that were not allocated any value in the underwriting
during the origination of the Mortgage Loan, the terms of the related
Mortgage do not provide for
I-9
release of any portion of the Mortgaged Property from the lien of the
Mortgage except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof
which (a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements which
were included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the Mortgage
Loan lies outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon
such Mortgaged Property to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
title insurance).
29. With respect to at least 95% of the Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the
Initial Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or Mortgaged
Properties, as applicable, and assets incidental to its ownership and
operation of such Mortgaged Property, and to hold itself out as being a
legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received from
any Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect such Mortgagor's ability to pay principal, interest or any
I-10
other amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is
in full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the Mortgage
Loan, the related Mortgagor was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, and, as of the Cut-off Date, the Seller has no actual knowledge
that the related Mortgagor was not in possession of such licenses, permits
and authorizations.
37. The origination (or acquisition, as the case may be)
practices used by the Seller or its affiliates with respect to the
Mortgage Loan have been in all material respects legal and the servicing
and collection practices used by the Seller or its affiliates with respect
to the Mortgage Loan have met customary industry standards for servicing
of commercial mortgage loans for conduit loan programs.
I-11
38. Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
39. The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related Mortgagor accepts responsibility for fraud and/or other
intentional material misrepresentation. The Mortgage Loan documents for
each Mortgage Loan provide that the related Mortgagor shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5),
the Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two (2) years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or, in
the case of a partial defeasance, in an amount sufficient to make all
scheduled payments with respect to the defeased portion of such Mortgage
Loan). In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys' fees),
and provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which the
lender can require) (i) an accountant's certification as to the adequacy
of the defeasance collateral to make 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
I-12
documents may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged Property
to be encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of money
junior to or of equal priority with, or superior to, the lien of the
related Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmen's liens that become payable after the
Cut-off Date of the related Mortgage Loan).
I-13
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
940953245 - Backlick South
940953068 - Plaza Dental Building
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SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than thirty (30) days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period.
4. To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than payments due
but not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than
twenty (20) years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution), or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease for any
reason, including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
Exceptions to representation #16
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940952387 The Shoppes at South Bay (Walmart) With respect to each Mortgage Loan listed to the
940952863 Xxxxxxx Tool left, if the related Mortgage Note is not paid in
940952886 PetSmart full on its maturity date and the holder thereof
940952930 Challenger One Building exercises its option to forebear from pursuing its
940952964 Mill Ridge Office Center remedies, such Mortgage Loan provides that, during
940953080 OSI Collection Services the period commencing on or about the related
940953188 Goodwill Tropicana maturity date and continuing until the earlier of
940953198 Roseland HQ Building such Mortgage Loan being paid in full or the holder
940953202 Broomfield Plaza Shopping Center terminating its forbearance, additional interest
above the stated interest rate applicable prior to
the maturity date shall accrue and may be compounded
monthly and shall be payable only after all of the
outstanding principal of such Mortgage Loan is paid
in full.
----------------------------------------------------------------------------------------------------------------------
Exceptions to representation #19
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940953249 Park Place Apartments - Manhattan A short-term radon test indicated that radon levels
on the Mortgaged Property exceed U.S. EPA
guidelines. The environmental consultant
recommended that confirmatory radon sampling be
conducted at an estimated cost of $30 to $1,000.
----------------------------------------------------------------------------------------------------------------------
Exceptions to representation #22
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940952387 The Shoppes at South Bay (Walmart) With respect to each Mortgage Loan listed to the
940952863 Xxxxxxx Tool left, if the related Mortgage Note is not paid in
940952886 PetSmart full on its maturity date and the holder thereof
940952930 Challenger One Building exercises its option to forebear from pursuing its
940952964 Mill Ridge Office Center remedies, such Mortgage Loan provides that, during
940953080 OSI Collection Services the period commencing on or about the related
940953188 Goodwill Tropicana maturity date and continuing until the earlier of
940953198 Roseland HQ Building such Mortgage Loan being paid in full or the holder
940953202 Broomfield Plaza Shopping Center terminating its forbearance, additional interest
above the stated interest rate applicable prior to
the maturity date shall accrue and may be compounded
monthly and shall be payable only after all of the
outstanding principal of such Mortgage Loan is paid
in full.
----------------------------------------------------------------------------------------------------------------------
IV-1
Exceptions to representation #26
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940953245 Backlick South Each of the Mortgage Loans listed to the left are
940953246 Springfield 8 cross-defaulted and cross-collateralized with each
other. The respective Mortgaged Properties may be
released from the effects of the
cross-collateralization subject to the satisfaction
of certain conditions set forth in the related
Mortgage Loan documents.
----------------------------------------------------------------------------------------------------------------------
Exceptions to representation #31
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940953403 The Atlantic Building Xxxxxxx Xxxxx, the principal owner of the borrower,
and a leasing director for Xxxxxxx Development
Corporation, which master leases a portion of and
manages certain retail leasing activities with
respect to the mortgaged real property and is owned
by Xxxxxxx Xxxxx, were convicted of wire fraud in
October 2006 in connection with the prosecution and
guilty plea of a former Washington, D.C. official on
bribery charges. Jemal and his employee were found
innocent on related bribery charges. Said leasing
director and another official of Xxxxxxx Development
Corporation were found or plead guilty to certain
felony personal tax evasion counts in connection
with the bribery prosecution.
----------------------------------------------------------------------------------------------------------------------
III-2
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
Exceptions to representation #10
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER(S) LOAN NAME(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
940953106 K-Mart Store - Oceanside The consent of the ground lessor for any subletting
of the Mortgaged Property is required, which consent
may not be unreasonably withheld.
----------------------------------------------------------------------------------------------------------------------
IV-1
ANNEX A
MORTGAGE LOAN SCHEDULE
III-2
LOAN
LOAN MORTGAGE LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
12 PNC 1 The Atlantic Xxxxxxxx 000 X Xxxxxx XX
00 XXX 0 Xxxxx Xxxxx 000-000 X. Xxx Xxxxx Xxxx
29 PNC 1 The Shoppes at South Bay (Walmart) 00000 Xxxxx Xxxxxxxxx Xxxxxx
30 PNC 1 Xxxxx Canyon Tech Center 2923 & 0000 Xxxxxxx Xxxxxx
36 PNC 1 Red Lion Hanalei Hotel 2270 Hotel Circle North
42 PNC 1 121 Airport Centre I & II 2200-2208 Highway 121
------------------------------------------------------------------------------------------------------------------------------------
44 PNC 1 Backlick South 8241, 8245, 8249 & 0000 Xxxxxxxxx Xx
45 PNC 1 Springfield 8 0000 Xxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
53 PNC 2 Equinox on the Park Apartment Homes 0000 Xxxxx Xxxxxx Xxxx
55 PNC 0 Xxxxxxxx Xxxxx 00-00 Xxxx Xxxx Xxxx
59 PNC 1 Holiday Inn of Toms River 000 Xxxxx 00 Xxxx
72 PNC 1 Residence Inn - Xxxxx 00 Xxxxxx Xxxx
73 PNC 1 Hilton Garden Inn - Buffalo Airport 0000 Xxxxxxxx Xxxxxx
77 PNC 0 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx
82 PNC 1 Grand Flamingo 4180 & 4220 S. Grand Canyon Drive, 0000-0000
X. Xxxxxxxx Xxxx
90 PNC 1 AOC Building 0000 Xxxxxxx Xxxx
96 PNC 1 Fabyan Crossing 1900 & 0000 Xxxxx Xxxxxxx Xxxx
101 PNC 0 Xxxxxxx Xxx & Xxxxxx - Xxxxxx 000 X. Xxx Xxxxxx
103 PNC 1 Maple Crossing 0000-0000 Xxxxx Xxxx
106 PNC 1 Self Storage 1 000 Xxxx Xxxxxx
122 PNC 2 Legacy Senior Apartments 0000 Xxxxxxxxx Xxxxxx
123 PNC 1 Homewood Suites - Amherst 1138 Millersport Highway
125 PNC 0 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxx 000xx Xxxxxx
126 PNC 1 Springhill Suites - Solon 00000 Xxxxxx Xxxx
133 PNC 0 Xxxxxx Xxxxx Xxxx 0000 X. Xxxxx Xxxxxx
134 PNC 1 Via Esprillo 16510 Via Esprillo
137 PNC 2 Autumn Park Apartment Homes 0000 Xxxxx Xxxxxxx Xxxxxx
139 PNC 1 Mill Xxxxx Xxxxxx Xxxxxx 0 & 0 Xxxx Xxxxx Xxxx
141 PNC 1 Yorktown Center 0000 Xxxx 00xx Xxxxxx
142 PNC 0 Xxxxxxxxx Xxxxx 00000 Xxxxxx Xxxxxxx Trail
150 PNC 0 Xxxxxxx Xxxxx - Xxxxxxxx 000-000 X. 00xx Xxxxxx
151 PNC 0 Xxxxxxxxx Xxxxx 262 Saratoga Road
158 PNC 0 Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx 0000 & 0000 X. Xxxxxxx Xxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
165 PNC 1 Sentinel Self-Storage Portfolio Various
165.1 1 Sentinal Self Storage - Smyrna 00 Xxxxx Xxxx Xxxx
165.2 1 Sentinel Self Storage - Elkton 00 Xxxxx Xxxxx Xxxxx
165.3 1 Sentinel Self Storage - Xxxxxxxxxx 000 Xxxxxxxxxx Xxxx & 000 Xxxx Xxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
171 PNC 2 Crown Ridge Apartments 0000 Xxxxx Xxxxx Xxxxx
181 PNC 1 Pinetree Center 0000 X. Xxxxxxxx Xxxxxxxxx
185 PNC 0 XxXxxxxx Xxxxxxx 0000 XxXxxxxx Xxxxxxx
191 PNC 2 Xxxxxx Mansions 0000 XX 000xx Xxxxxx
198 PNC 0 Xxxx Xxxxx Xxxxxxxxxx - Xxxxxxxxx 0000 Xxxxxxxxx Place
201 PNC 1 Challenger Xxx Xxxxxxxx 000 & 000 Xxxxx Xxxxxx
208 PNC 1 Holiday Inn Express & Suites - Ft. Xxxxx 0000 Xxxxxxx Xxxx
213 PNC 1 Suburban Extended Stay Hotel Tampa Airport W 0000 Xxxx Xxxxxxxxxxxx Xxxxxx
215 PNC 1 Riverbend Shopping Center 0000-0000 Xxxx Xxxxxxxx Xxxxxx
224 PNC 0 Xxxxxx - Xxxxx Xxxxx 0 Xxxxxxxxxxx Xxxx
241 PNC 1 Omni Storage V 00000 Xxx 00
243 PNC 0 Xxx Xxx Xxxxx 0000-0000 Xxxxxx Xxxx
245 PNC 1 Eckerd - NY Xxxxx 0000 Xxxxxxxxxx Xxxxx
247 PNC 1 Minikahda Mini Storage III 1413 & 1441 Hunting Valley Road
255 PNC 0 Xxxxxxxx XX Xxxxxxxx 000 Xxxxx Xxxxx Road
261 PNC 1 Goodwill Tropicana 0000 X. Xxxxxxxxx Xxxxxx
266 PNC 1 K-Mart Store - Oceanside 000 Xxxxxxx Xxxxxx
268 PNC 1 K-Mart Store - Waukegan 0000 Xxxxxxxxx Xxxx
279 PNC 1 OSI Collection Services 0000 Xxxxxx Xxxx
282 PNC 1 Xxxxxxx Corporation 0000 Xxxxx Xxxxx
000 XXX 1 Bunker Hill Center 102 Sleepy Hollow Drive
288 PNC 1 PetSmart 0000 Xxxxxxxxxx Xxxx
290 PNC 1 Rite Aid - Xxxxx 0000 Xxxxxxx Xxxx
311 PNC 1 ProHealth Physicians 000 Xxxxx Xxxxxx
319 PNC 1 Ellicott Creek Plaza 0000-0000 Xxxxxx Xxxxx Xxxx.
323 PNC 1 Minikahda Mini Storage & No. Concord Business Ctr 1200 Concord Street North
329 PNC 1 Rite Aid - Buffalo 0000 Xxxxxx Xxxxxx
342 PNC 0 Xxxxxxxxx Xxxxx - Xxxxxxx Xxxx 00 Xxxxxxxxx Xxxxx
343 PNC 0 Xxxxx Xxxx Xxxx Xxxxxx Xxxxxx 0000-0000 & 0000-0000 X. Xxxxx Xxxx Xxxx
345 PNC 0 0xx Xxxxxx Office 0000 0xx Xxxxxx
353 PNC 1 Plaza Dental Building 0000 Xxxxxxxxx Xxxxxx
358 PNC 2 Gardens at Xxxxx Creek 700 North Xxxxxxx
XXXXX
COLLATERALIZED
(MORTGAGE MASTER
LOAN CUT-OFF DATE LOAN MORTGAGE SERVICING
NUMBER CITY STATE ZIP CODE COUNTY PRINCIPAL BALANCE GROUP) RATE FEE RATE
--------------------------------------------------------------------------------------------------------------------------------
12 Washington DC 20004 DC 149,700,000.00 No 5.5500% 0.0300%
16 Xxx Xxxxxx XX 00000 San Diego 86,500,000.00 No 5.7900% 0.0300%
29 Xxx Xxxxxxx XX 00000 Los Angeles 38,000,000.00 No 5.6000% 0.0300%
30 Xxxxxxxx XX 00000 Los Angeles 36,875,000.00 No 5.6800% 0.0500%
36 Xxx Xxxxx XX 00000 San Dieego 32,000,000.00 No 5.7000% 0.0600%
42 Xxxxxxx XX 00000 Tarrant 26,900,000.00 No 6.1300% 0.0500%
--------------------------------------------------------------------------------------------------------------------------------
44 Xxxxxx XX 00000 Fairfax 19,300,000.00 Yes (C2) 5.7800% 0.0600%
45 Xxxxxx XX 00000 Fairfax 6,700,000.00 Yes (C2) 5.7800% 0.0600%
--------------------------------------------------------------------------------------------------------------------------------
53 Xxxxxxx XX 00000 Dallas 24,050,000.00 No 5.3100% 0.0300%
55 Xxxxxx XX 00000 Ontario 20,500,000.00 No 5.5400% 0.0300%
00 Xxxx Xxxxx XX 00000 Ocean 19,887,466.37 No 5.8200% 0.0300%
72 Xxxxx XX 00000 Passaic 16,313,423.37 No 5.7900% 0.0300%
73 Xxxxxxxxxxx XX 00000 Erie 15,964,206.35 No 5.7900% 0.0300%
00 Xxxxxxxx XX 00000 Xxxxxxxxx Xxxxxx 15,100,000.00 No 5.6000% 0.0300%
82 Xxx Xxxxx XX 00000 Xxxxx 14,250,000.00 No 5.6600% 0.0300%
90 Xxxxxxxx XX 00000 Henrico 12,500,000.00 No 5.7500% 0.0500%
96 Xxxxxx XX 00000 Xxxx 11,534,284.35 No 5.7700% 0.0600%
000 Xxxxxx XX 00000 Fresno 11,056,668.12 No 6.1600% 0.0300%
000 Xxxxxxx XX 00000 Erie 10,964,013.07 No 5.5400% 0.0300%
000 Xxx Xxxxxxxxx XX 00000 Xxx Xxxxxxxxx 10,500,000.00 No 5.8400% 0.0500%
122 Ft. Xxxxx XX 00000 Tarrant 9,577,917.56 No 5.6200% 0.0300%
000 Xxxxxxx XX 00000 Erie 9,528,635.68 No 5.7900% 0.0300%
125 Xxxxxxxxxx XX 00000 Broomfield 9,500,000.00 No 5.6100% 0.0300%
126 Xxxxx XX 00000 Cuyahoga 9,350,036.10 No 5.7900% 0.0300%
000 Xxxxx Xxxxxx XX 00000 Lincoln 9,000,000.00 No 6.0300% 0.0300%
000 Xxx Xxxxx XX 00000 San Diego 9,000,000.00 No 5.6300% 0.0800%
000 Xxxxxxxx XX 00000 Victoria 8,675,000.00 No 5.9000% 0.0500%
000 Xxxxxxx XX 00000 Xxxxxx 8,600,000.00 No 6.5400% 0.0300%
141 Erie PA 16505 Erie 8,480,351.51 No 5.5900% 0.0300%
142 Xxxxxxx XX 00000 Orange 8,452,826.04 No 5.6500% 0.0300%
000 Xxxxxxxx XX 00000 Lake 8,165,691.56 No 5.7900% 0.0300%
000 Xxxxxxxxx XX 00000 Schenectady 8,069,028.73 No 5.7900% 0.0300%
000 Xxxx XX 00000 Maricopa 7,685,000.00 No 5.8100% 0.0300%
--------------------------------------------------------------------------------------------------------------------------------
165 Various Various Various Various 7,217,749.00 No 5.8500% 0.0300%
165.1 Xxxxxx XX 00000 Kent
165.2 Xxxxxx XX 00000 Xxxxx
165.3 Xxxxxxxxxx XX 00000 New Castle
--------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxx XX 00000 Cleveland 6,983,003.75 No 5.2900% 0.0800%
000 Xxxxxxxxxxx XX 00000 Xxxxxx 6,175,000.00 No 5.6700% 0.0300%
185 Xxxxxxx XX 00000 Erie 6,036,465.53 No 5.7900% 0.0300%
191 Xxxxxx XX 00000 Oklahoma 5,750,000.00 No 6.3000% 0.0700%
000 Xxxxxxxxx XX 00000 Xxxxx 5,400,000.00 No 6.0100% 0.0300%
000 Xxxxxxxx XX 00000 Xxx Xxxxxxx 5,325,000.00 No 6.2000% 0.0800%
000 Xx. Xxxxx XX 00000 Xxxxx 5,088,459.26 No 5.7200% 0.0300%
213 Xxxxx XX 00000 Hillsborough 4,971,379.77 No 6.1000% 0.0300%
000 Xxxx Xxxxx XX 00000 Milwaukee 4,820,000.00 No 5.7900% 0.0800%
000 Xxxxx XX 00000 Monroe 4,594,698.14 No 5.7900% 0.0300%
000 Xxxxxxxxxxx XX 00000 Xxxxxxxxxx Xxxxxx 4,240,000.00 No 6.1000% 0.0300%
000 Xxxxxxxxxxx XX 00000 Erie 4,234,242.80 No 5.7900% 0.0300%
000 Xxx Xxxx Xxxxx XX 00000 Oneida 4,190,604.16 No 5.7900% 0.0300%
000 Xx. Xxxx XX 00000 Xxxxxx 4,092,606.29 No 5.8400% 0.0800%
000 Xxxxx Xxxxx XX 00000 Essex 4,000,000.00 No 5.8400% 0.0300%
000 Xxx Xxxxx XX 00000 Xxxxx 3,700,000.00 No 6.1300% 0.0800%
266 Xxxxxxxxx XX 00000 San Diego 3,604,930.56 No 5.8000% 0.0300%
000 Xxxxxxxx XX 00000 Lake 3,591,946.43 No 5.7900% 0.0300%
279 Xxxxxx XX 00000 Franklin 3,300,000.00 No 5.9000% 0.0800%
000 Xxxxxxxx XX 00000 Xxxxxx 3,200,000.00 No 6.0900% 0.0300%
000 Xxxxxxxxxx XX 00000 Xxx Xxxxxx 3,080,000.00 No 5.8700% 0.0300%
000 Xxxxxxx XX 00000 Xxxxxx 3,033,407.39 No 5.9800% 0.0500%
290 Xxxxx XX 00000 Erie 2,993,288.69 No 5.7900% 0.0300%
000 Xxxx Xxxxxxxx XX 00000 Hartford 2,565,000.00 No 6.1300% 0.0600%
000 Xxxxxxx XX 00000 Erie 2,321,843.04 No 5.7900% 0.0300%
000 Xxxxx Xx. Xxxx XX 00000 Dakota 2,295,852.31 No 5.8400% 0.0800%
329 Xxxxxxx XX 00000 Erie 2,195,070.31 No 5.7800% 0.0300%
000 Xxxxxxx Xxxx XX 00000 Xxxxxx 1,995,525.79 No 5.7900% 0.0300%
343 Xxxxx XX 00000 San Xxxxxxx 1,994,802.07 No 5.5100% 0.0600%
000 Xxxxx Xxxxxx XX 00000 Xxx Xxxxxxx 1,925,000.00 No 5.8600% 0.0600%
353 Xxxxxx Xxxx XX 00000 Xxxxxxx 1,697,794.53 No 6.2400% 0.0300%
358 Pryor OK 74361 Xxxxx 1,575,000.00 No 6.5100% 0.0300%
INTEREST
RESERVE
MORTGAGE
LOAN ARD LOAN ADDITIONAL INTEREST LOAN
NUMBER (YES/NO)? ARD RATE AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD
----------------------------------------------------------------------------------------------------------------------
12 No Yes Interest Only 5
16 No Yes Partial IO/Balloon 5
29 No Yes Partial IO/Balloon 5
30 No Yes Partial IO/Balloon 5
36 No Yes Partial IO/Balloon 5
42 No Yes Partial IO/Balloon 5
----------------------------------------------------------------------------------------------------------
44 No Yes Partial IO/Balloon 5
45 No Yes Partial IO/Balloon 5
----------------------------------------------------------------------------------------------------------
53 No Yes Partial IO/Balloon 5
55 No Yes Partial IO/Balloon 5
59 No Yes Balloon 5
72 No Yes Balloon 5
73 No Yes Balloon 5
77 No Yes Partial IO/Balloon 5
82 No Yes Partial IO/Balloon 5
90 No Yes Partial IO/Balloon 5
96 No Yes Balloon 5
101 No Yes Balloon 5
103 No Yes Balloon 5
106 No Yes Partial IO/Balloon 5
122 No Yes Balloon 5
123 No Yes Balloon 5
125 No Yes Partial IO/Balloon 5
126 No Yes Balloon 5
133 No Yes Balloon 5
134 No Yes Partial IO/Balloon 5
137 No Yes Partial IO/Balloon 5
139 No Yes Partial IO/Balloon 5
141 No Yes Balloon 5
142 No Yes Balloon 5
150 No Yes Balloon 5
151 No Yes Balloon 5
158 No Yes Partial IO/Balloon 5
----------------------------------------------------------------------------------------------------------
165 No Yes Balloon 5
165.1
165.2
165.3
----------------------------------------------------------------------------------------------------------
171 No Yes Balloon 5
181 No Yes Partial IO/Balloon 5
185 No Yes Balloon 5
191 No Yes Partial IO/Balloon 5
198 No Yes Balloon 5
201 No Yes Partial IO/Balloon 5
208 No Yes Balloon 5
213 No Yes Balloon 5
215 No Yes Partial IO/Balloon 5
224 No Yes Balloon 5
241 No Yes Partial IO/Balloon 5
243 No Yes Balloon 5
245 No Yes Balloon 5
247 No Yes Balloon 5
255 No Yes Partial IO/Balloon 5
261 No Yes Partial IO/Balloon 5
266 No Yes Balloon 5
268 No Yes Balloon 5
279 No Yes Partial IO/Balloon 5
282 No Yes Partial IO/Balloon 5
286 No Yes Partial IO/Balloon 5
288 No Yes Balloon 5
290 No Yes Balloon 5
311 No Yes Partial IO/Balloon 5
319 No Yes Balloon 5
323 No Yes Balloon 5
329 No Yes Balloon 5
342 No Yes Balloon 5
343 No Yes Balloon 5
345 No Yes Partial IO/Balloon 5
353 No Yes Balloon 5
358 No Yes Balloon 5
ORIGINAL REMAINING STATED STATED
TERM TO TERM TO ORIGINAL REMAINING
PERIODIC PAYMENT MATURITY / MATURITY / AMORTIZATION AMORTIZATION DEFEASANCE
LOAN STATED MATURITY ON FIRST DUE ARD ARD TERM TERM LOAN
NUMBER DATE DATE AFTER CLOSING (MONTHS) (MONTHS) (MONTHS) (MONTHS) (YES/NO)?
----------------------------------------------------------------------------------------------------------------------
12 04/01/17 715,441.25 (Note 4) 121 121 Interest Only Interest Only Yes
16 01/01/17 431,274.58 120 118 360 360 Yes
29 04/01/17 183,244.44 (Note 4) 121 121 360 360 Yes
30 01/01/17 180,359.72 120 118 360 360 Yes
36 01/01/17 157,066.67 120 118 360 360 Yes (Note 3)
42 10/01/16 141,994.64 120 115 360 360 Yes
-----------------------------------------------------------------------------------------------------------------------
44 01/01/17 96,060.39 120 118 360 360 Yes
45 01/01/17 33,347.39 120 118 360 360 Yes
-----------------------------------------------------------------------------------------------------------------------
53 11/01/15 109,968.63 120 104 360 360 No
55 01/01/17 97,796.39 120 118 360 360 No
59 01/01/17 126,352.01 120 118 300 298 Yes
72 01/01/17 95,830.03 120 118 360 358 No
73 01/01/17 93,778.62 120 118 360 358 No
77 01/01/17 72,815.56 120 118 360 360 Yes
82 04/01/17 69,452.92 (Note 4) 121 121 360 360 Yes
90 02/01/17 61,892.36 120 119 360 360 Yes
96 02/01/17 67,549.48 120 119 360 359 Yes
101 01/01/17 67,574.23 120 118 360 358 No
103 12/01/16 62,733.13 120 117 360 357 No
106 01/01/17 52,803.33 120 118 360 360 Yes
122 01/01/17 55,232.71 120 118 360 358 Yes
123 01/01/17 55,974.11 120 118 360 358 No
125 11/01/16 45,892.92 120 116 360 360 Yes
126 01/01/17 54,924.97 120 118 360 358 No
133 03/01/17 54,133.26 120 120 360 360 Yes
134 01/01/17 43,632.50 120 118 360 360 No
137 12/01/16 44,073.82 120 117 360 360 No
139 02/01/12 48,432.33 60 59 360 360 Yes
141 01/01/17 48,743.13 120 118 360 358 Yes
142 12/01/16 48,949.59 120 117 360 357 No
150 01/01/17 47,967.76 120 118 360 358 No
151 02/01/17 47,358.20 120 119 360 359 No
158 01/01/17 38,448.48 120 118 360 360 Yes
-----------------------------------------------------------------------------------------------------------------------
165 12/01/16 46,049.35 120 117 300 297 Yes
165.1
165.2
165.3
-----------------------------------------------------------------------------------------------------------------------
171 01/01/17 38,827.87 120 118 360 358 Yes
181 02/01/17 30,149.44 120 119 360 360 Yes
185 01/01/17 35,460.04 120 118 360 358 No
191 10/01/16 31,193.75 120 115 360 360 No
198 03/01/12 32,410.45 60 60 360 360 Yes
201 09/01/16 28,429.58 120 114 360 360 Yes
208 01/01/14 29,665.09 84 82 360 358 No
213 11/01/16 32,521.40 120 116 300 296 No
215 01/01/17 24,031.72 120 118 360 360 Yes
224 01/01/17 26,990.66 120 118 360 358 No
241 12/01/16 22,271.78 120 117 360 360 Yes
243 02/01/17 24,851.33 120 119 360 359 No
245 01/01/17 24,616.89 120 118 360 358 No
247 02/01/17 26,016.82 120 119 300 299 Yes
255 01/01/12 20,115.56 60 58 360 360 Yes
261 01/01/17 19,530.86 120 118 360 360 No
266 01/01/15 21,199.39 96 94 360 358 No
268 01/01/17 21,100.19 120 118 360 358 No
279 12/01/16 16,765.83 120 117 360 360 Yes
282 11/01/16 16,781.33 120 116 300 300 Yes
286 03/01/17 15,568.54 120 120 360 360 Yes
288 01/01/17 18,187.26 120 118 360 358 No
290 01/01/17 17,583.49 120 118 360 358 No
311 12/01/16 13,539.64 120 117 360 360 Yes
319 02/01/17 13,627.21 120 119 360 359 No
323 02/01/17 14,594.80 120 119 300 299 Yes
329 01/01/17 12,880.56 120 118 360 358 No
342 01/01/17 11,722.33 120 118 360 358 No
343 02/01/17 13,769.04 120 119 240 239 Yes
345 01/01/17 9,713.76 120 118 360 360 No
353 02/01/17 10,456.14 120 119 360 359 Yes
358 03/01/22 9,965.43 180 180 360 360 No
ESCROWED
ESCROWED REPLACEMENT
ANNUAL ESCROWED RESERVES
LOAN PROPERTY REAL ESTATE ANNUAL INITIAL
NUMBER BORROWER'S INTEREST PROPERTY SIZE SIZE TYPE LOCKBOX (YES/NO)? TAXES INSURANCE DEPOSIT
------------------------------------------------------------------------------------------------------------------------------------
12 Fee Simple 283,889 SF Yes Yes Yes 0
16 Fee Simple 352,980 SF Springing Yes Yes 0
29 Fee Simple 196,062 SF No Yes Yes 0
30 Fee Simple 213,504 SF Springing Yes Yes 0
36 Fee Simple 416 Rooms No Yes Yes 3,543,035
42 Fee Simple 251,168 SF Springing Yes Yes 0
------------------------------------------------------------------------------------------------------------------------------------
44 Fee Simple 217,831 SF No Yes Yes 0
45 Fee Simple 81,767 SF No Yes Yes 0
------------------------------------------------------------------------------------------------------------------------------------
53 Fee Simple 338 Units No Yes Yes 400,000
55 Leasehold 117,627 SF No No No 0
59 Fee Simple 173 Rooms No Yes No 0
72 Fee in Part, Leasehold in Part 119 Rooms No No No 0
73 Fee in Part, Leasehold in Part 158 Rooms No Yes No 0
77 Fee Simple 116,556 SF No Yes Yes 400,000
82 Fee Simple 29,754 SF Springing Yes Yes 0
90 Fee Simple 60,500 SF Yes Yes Yes 0
96 Fee Simple 86,577 SF Springing Yes Yes 0
101 Fee Simple 85 Rooms No Yes Yes 0
103 Fee Simple 67,389 SF No No No 0
106 Fee Simple 78,375 SF No Yes Yes 200,000
122 Fee Simple 162 SF No No Yes 0
123 Fee in Part, Leasehold in Part 93 Rooms No No No 0
125 Fee Simple 105,064 SF No Yes No 260,000
126 Fee Simple 120 Rooms No No No 0
133 Fee Simple 223,073 SF Springing Yes Yes 0
134 Fee Simple 57,338 SF No Yes No 0
in Immediate
137 Fee Simple 288 Units No Yes Yes Rep at Closing
139 Fee Simple 32,000 SF Yes Yes Yes
141 Fee Simple 204,605 SF Springing No No 0
142 Fee Simple 50,280 SF No Yes No 0
150 Fee Simple 126,095 SF No No No 0
151 Fee Simple 91,944 SF No No No 0
158 Fee Simple 41,480 SF No Yes Yes 0
------------------------------------------------------------------------------------------------------------------------------------
165 Fee Simple 165,860 SF No Yes Yes 0
165.1 Fee Simple 46,050 SF
165.2 Fee Simple 45,025 SF
165.3 Fee Simple 74,785 SF
------------------------------------------------------------------------------------------------------------------------------------
171 Fee Simple 112 Units No Yes Yes 0
181 Fee Simple 74,772 SF Springing Yes Yes 0
185 Fee Simple 44,019 SF No No No 0
191 Fee Simple 105 Units No Yes Yes 31,500
198 Fee Simple 256 Units No Yes Yes 0
201 Fee Simple 28,920 SF Yes Yes Yes 0
208 Fee Simple 83 Rooms No Yes Yes 0
213 Fee Simple 136 Rooms No Yes Yes 0
215 Fee Simple 46,799 SF No Yes Yes 132,475
224 Fee Simple 12,711 SF Springing No No 0
241 Fee Simple 47,610 SF No Yes Yes 0
243 Fee Simple 54,142 SF No No No 0
245 Fee in Part, Leasehold in Part 12,711 SF No No No 0
247 Fee Simple 93,723 Units No Yes Yes 0
255 Fee Simple 19,200 SF Yes No No 0
261 Fee Simple 21,900 SF Yes Yes Yes 0
266 Leasehold 86,479 SF No No No 0
268 Fee Simple 115,492 SF Springing No No 0
279 Fee Simple 43,304 SF Yes No Yes 0
282 Fee Simple 178,854 SF Yes No No 0
286 Fee Simple 18,820 SF No Yes Yes 0
288 Fee Simple 20,087 SF Yes Yes Yes 0
290 Fee Simple 10,890 SF No No No 0
311 Fee Simple 11,667 SF Yes Yes Yes 0
319 Fee Simple 28,755 SF No No No 0
323 Fee Simple 101,546 Units No Yes Yes 0
329 Fee Simple 11,232 SF No No No 0
342 Fee Simple 26,747 SF No No No 0
343 Fee Simple 16,000 SF No Yes Yes 0
345 Fee Simple 4,750 SF Springing Yes No 0
353 Fee Simple 6,406 SF No Yes Yes 0
358 Fee Simple 90 Units No Yes Yes 0
ESCROWED INITIAL
REPLACEMENT ESCROWED TI/LC ESCROWED TI/LC DEFERRED INITIAL
LOAN RESERVES CURRENT RESERVES INITIAL RESERVES CURRENT MAINTENANCE ENVIRONMENTAL
NUMBER ANNUAL DEPOSIT DEPOSIT ANNUAL DEPOSIT DEPOSIT DEPOSIT HOLDBACK AMOUNT LOC
--------------------------------------------------------------------------------------------------------------------------------
12 57,446 7,200,000 0 0 4,000
16 50,739 25,000,000 100,000 0 0
29 29,537 1,067,225 50,000 0 0
30 42,701 0 250,000 0 0
36 369,248 NAP NAP 0 0
42 50,234 4,064,831 0 0 0
--------------------------------------------------------------------------------------------------------------------------------
44 21,783 0 0 0 10,000
45 8,177 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------
53 84,504 NAP NAP 400,000 0
55 17,644 0 0 0 0
59 0 NAP NAP 0 0
72 132,955 NAP NAP 0 0
73 159,841 NAP NAP 0 0
77 17,432 900,000 50,000 0 0
82 4,456 0 50,000 0 0
90 12,100 0 0 0 0
96 13,017 0 30,000 0 0
101 140,391 NAP NAP 67,834 0
103 0 0 0 0 0
106 11,813 NAP NAP 0 0
122 40,500 NAP NAP 0 0
123 80,129 NAP NAP 0 0
125 15,557 100,000 50,000 0 0
126 79,222 NAP NAP 0 0
133 40,834 0 15,000 0 0
134 11,468 51,000 30,000 0 0
137 72,000 NAP NAP 130,686 0
139 6,400 0 38,030 0
141 32,901 0 0 0 0
142 7,542 0 25,000 0 0
150 21,233 0 50,000 0 0
151 27,650 0 15,000 0 500
158 8,296 326,525 30,000 0 0
--------------------------------------------------------------------------------------------------------------------------------
165 24,879 NAP NAP 0 0
165.1 0
165.2 0
165.3 0
--------------------------------------------------------------------------------------------------------------------------------
171 28,000 NAP NAP 0 0
181 25,720 0 0 0 0
185 6,600 0 20,000 0 0
191 31,500 NAP NAP 0 0
198 76,800 NAP NAP 54,687 0
201 4,338 0 36,000 34,375 0
208 74,496 NAP NAP 0 0
213 67,392 NAP NAP 20,000 0
215 0 100,000 25,000 0 51,000
224 0 0 0 0 0
241 6,731 NAP NAP 0 0
243 11,741 0 0 0 0
245 0 0 0 0 7,500
247 14,690 NAP NAP 0 0
255 0 0 0 0 0
261 3,285 0 0 0 0
266 0 0 0 0 0
268 0 0 0 0 750
279 8,748 0 30,000 0 0
282 0 0 17,000 0 8,000
286 3,764 0 12,000 0 0
288 3,418 0 25,000 0 0
290 0 0 0 0 0
311 2,333 0 0 0 0
319 4,872 0 15,000 0 0
323 15,239 NAP 2,500 0 0
329 0 0 0 0 0
342 0 0 20,000 80,000 0
343 0 0 0 0 0
345 950 0 0 0 0
353 2,500 0 5,000 0 0
358 22,500 NAP NAP 0 0
LOAN ENVIRONMENTAL
NUMBER INSURANCE POLICY
------------------------------
12
16
29
30
36
42
------------------------------
44
45
------------------------------
53
55
59
72
73
77
82
90
96
101
103
106
122
123
125
126
133
134
137
139
141
142
150
151
158
------------------------------
165
165.1
165.2
165.3
------------------------------
171
181
185
191
198
201
208
213
215
224
241
243
245
247
255
261
266
268
279
282
286
288
290
311
319
323
329
342
343
345
353 Yes
358
