EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of October 27, 2005, between PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC (the
"Seller") and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
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"), dated as of November 1, 2005,
among the Purchaser, as depositor, Midland Loan Services, Inc., as master
servicer (the "Master Servicer"), LNR Partners, Inc., as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used
herein (including the schedules attached hereto) but not defined herein (or in
such schedules) have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $267,897,007 (the "PMCF Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The PMCF 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
$3,878,244,727 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on November 15, 2005 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of an amount equal to (i) 98.4977% of the PMCF
Mortgage Loan Balance as of the Cut-off Date, plus (ii) $540,884, which amount
represents the amount of interest accrued on the PMCF Mortgage Loan Balance, as
agreed to by the Seller and the Purchaser.
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 (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Aggregate Purchase Price), the Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing-released basis, together with all of the Seller's right, title
and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds and any escrow, reserve or comparable
accounts related to the Mortgage Loans, subject, in the case of any other
Mortgage Loan that is part of a Loan Combination, to the rights of the holder(s)
of any of the mortgage loan(s) in the related Loan Combination in such proceeds
and reserve or comparable accounts, and further subject to that certain
Servicing Rights Purchase Agreement, dated as of November 15, 2005, between the
Master Servicer and the Seller.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver to the Trustee (with a copy to the Master Servicer and the
Special Servicer within ten Business Days of the Closing Date) the documents and
instruments specified below 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 to the Trustee the remaining documents and instruments specified below
with respect to each Mortgage Loan that is a Serviced Mortgage Loan (the
documents and instruments specified below, collectively, the "Mortgage File").
All Mortgage Files so delivered will be held by the Trustee in escrow for the
benefit of the Seller at all times prior to the Closing Date. The Mortgage File
for each Mortgage Loan that is a Serviced Mortgage Loan shall contain the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "LaSalle Bank National Association, as trustee for
the registered holders of CD 2005-CD1 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2005-CD1" or
2
in blank (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto);
(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;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank, the name
of the assignee), of (A) the Mortgage, (B) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (C) any other
recorded document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of "LaSalle Bank National Association, as trustee
for the registered holders of CD 2005-CD1 Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-CD1" (and, in
the case of a Serviced Loan Combination, also on behalf of the related
Non-Trust Loan Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "LaSalle Bank National Association, as trustee for
the registered holders of CD 2005-CD1 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2005-CD1" (and, in the case of a
Serviced Loan Combination, also on behalf of the related Non-Trust 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 Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or marked version of the policy that has been executed by
an authorized representative of the title company or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the Mortgage Loan or
in favor of any assignee prior to the
3
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) and, if there is an effective UCC Financing
Statement and continuation statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original UCC
Financing Statement assignment, in form suitable for filing in favor of
"LaSalle Bank National Association, as trustee for the registered holders
of CD Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2005-CD1" (and, in the case of any Serviced Loan
Combination, also on behalf of the related Non-Trust Loan Noteholder(s)),
as assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) secured creditor
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor;
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to the Mortgage Loan;
and
(xii) with respect to each Non-Trust Loan that is part of a
Serviced Loan Combination, all of the above documents with respect to such
Non-Trust Loan and the related Loan Combination Intercreditor Agreement;
provided that a copy of the Mortgage Note relating to each such Non-Trust
Loan, rather than the original, shall be provided, and no endorsements to
such note shall be provided.
(d) The Seller shall take all actions reasonably necessary to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement, including bearing the out-of-pocket costs and
expenses of the Trustee in connection with the performance by the Trustee of its
recording, filing and delivery obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, attorney-client
privileged communications and internal correspondence, credit underwriting or
due diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations and other underwriting analysis of the Seller) relating to, and
necessary for the servicing and administration of, each Mortgage Loan (other
than the Outside Serviced Mortgage Loan) and in the Seller's possession that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller which secure any Mortgage Loan. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the
4
Seller shall draw upon such letter of credit for the benefit of the Trust
pursuant to written instructions from the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a limited liability company organized and
validly existing and in good standing under the laws of the State of
Delaware and possesses all requisite authority, power, licenses, permits
and franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general 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 operating agreement or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which default might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Seller or
its properties or have consequences that would materially and adversely
affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
5
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any operating agreement or any other corporate
restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Seller's reasonable and good faith judgment,
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Seller
of its obligations under this Agreement (except to the extent such consent
has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of the Aggregate
Purchase Price. The consideration received by the Seller upon the sale of
the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedule III.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach shall materially and adversely affect the value of the
applicable Mortgage Loan or the interests of the Certificateholders therein,
cure such Document Defect or Breach, as the case may be, in all material
respects, which shall include payment of actual losses and any Additional Trust
Fund Expenses directly resulting therefrom or, if such Document Defect or Breach
(other than
6
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the Master Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith; provided, however, that, if 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. For a period of two years from the Closing
Date, so long as there remains any Mortgage File relating to a Mortgage Loan as
to which there is an uncured Document Defect, the Seller shall provide the
officer's certificate to the Trustee described above as to the reasons such
Document Defect remains uncured and as to the actions being taken to pursue
cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of the Trust Fund. Periodic Payments due with respect to any Qualified
Substitute Mortgage Loan on or prior to the related date of substitution shall
not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt.
(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 such other Crossed Loans in such Crossed Group satisfy the Crossed Loan
Repurchase Criteria and satisfy all other criteria for substitution or
repurchase, as applicable, of Mortgage Loans set forth herein or in the Pooling
and Servicing Agreement. In the event that the remaining Crossed Loans satisfy
the aforementioned criteria, the Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related 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 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
7
purchase or substitute for a Crossed Loan hereunder in the manner prescribed
above while the Purchaser continues to hold any other Crossed Loans in such
Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies
against the other's Primary Collateral, but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loans,
including, with respect to the Purchaser, the Primary Collateral securing the
Crossed Loans still held by the Purchaser, so long as such exercise does not
materially impair the ability of the other party to exercise its remedies
against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, 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 substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released or substituted pursuant to the terms of
any partial release or substitution provisions in the related Mortgage Loan
documents (and such Mortgaged Property(ies) are, in fact, released or
substituted) 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 Master Servicer, the Special
Servicer, the Trustee or the Trust Fund in connection with such release or
substitution, (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 either of REMIC I or REMIC II 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) each
Rating Agency then rating the Certificates shall have provided 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
8
Officer certifying as to the receipt of the Purchase Price or Substitution
Shortfall Amount(s), as applicable, in the Certificate Account, and the delivery
of the Mortgage File(s) and the Servicing File(s) for the related Qualified
Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable, (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the full corporate power and authority and legal right to acquire the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
9
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (i) any term or provision of the
Purchaser's operating agreement 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.
(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would, in
the Purchaser's reasonable and good faith judgment, materially and adversely
affect the validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in Section 6 of
this Agreement (the "Closing Documents"), in such forms as are agreed upon and
acceptable to the Purchaser,
10
the Seller, the Underwriters, the Initial Purchasers and their respective
counsel in their reasonable discretion, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall each have the ability
to comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) Letters from the independent accounting firms of Ernst & Young LLP
and PriceWaterhouse Coopers LLP in form satisfactory to the Purchaser, relating
to certain information regarding the Mortgage Loans and Certificates as set
forth in the Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser, the
Underwriters and the Initial Purchasers may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing Date,
and upon which the Purchaser may rely, to the effect that each individual who,
as an officer or representative of the Seller, signed this Agreement or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures;
11
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that (i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or the Seller or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans or the Seller, in light of the circumstances under which they were made,
not misleading, and (ii) such officer has examined the Specified Portions of the
Memorandum and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans or the Seller, in the light of the circumstances under which they were
made, not misleading. The "Specified Portions" of the Prospectus Supplement
shall consist of Annexes ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and B thereto (insofar as the
information contained in such annexes relates to the Mortgage Loans), the
diskette which accompanies the Prospectus Supplement (insofar as such diskette
is consistent with such Annexes ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇ and B) and the following
sections of the Prospectus Supplement (to the extent they relate to the Seller
or the Mortgage Loans and exclusive of any statements in such sections that
purport to summarize the servicing and administration provisions of the Pooling
and Servicing Agreement): "Summary of Prospectus Supplement--Relevant
Parties--Mortgage Loan Sellers," "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties," "Risk
Factors--Risks Related to the Underlying Mortgage Loans," and "Description of
the Mortgage Pool." The "Specified Portions" of the Memorandum shall consist of
the Specified Portions of the Prospectus Supplement and "Summary of the Offering
Memorandum--Relevant Parties--Mortgage Loan Sellers".
(e) The certificate of formation and operating agreement of the
Seller, and a certificate of good standing of the Seller issued by the State of
Delaware not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the sale of the Mortgage Loans by the Seller to
the Purchaser.
SECTION 7. 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
12
that the PMCF Mortgage Loan Balance represents as 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 preliminary and
final Prospectus and Memorandum relating to the Certificates; (iii) the initial
fees, costs, and expenses of the Trustee (including reasonable attorneys' fees);
(iv) the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates so registered; (v) the fees charged by the
Rating Agencies to rate the Certificates so rated; (vi) the fees and
disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller with respect to numerical information in respect of the
Mortgage Loans and the Certificates included in the Prospectus, the Memorandum
and any related Computational Materials or ABS Term Sheets, including in respect
of the cost of obtaining any "comfort letters" with respect to such items; (vii)
the reasonable out-of-pocket costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or "Blue
Sky" laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any "Blue
Sky" survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Underwriters and the Initial Purchasers. All
other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expense.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper
13
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the Uniform Commercial Code
of the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement, and in connection therewith the Seller
authorizes the Purchaser to file any and all appropriate Uniform Commercial Code
financing statements.
SECTION 9. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
14
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. 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 16. 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 17. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters and the Initial Purchasers (as intended third party
beneficiaries hereof) and their permitted successors and assigns. This Agreement
is enforceable by the Underwriters, the Initial Purchasers and the other third
party beneficiaries hereto in all respects to the same extent as if they had
been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party, or third party beneficiary, against
whom such waiver or modification is sought to be enforced. No amendment to the
Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase
15
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 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP and PriceWaterhouse Coopers LLP in making available all
information and taking all steps reasonably necessary to permit such accountants
to deliver the letters required by the Underwriting Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge," such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
16
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
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Four Gateway Center, 8th Floor
Newark, New Jersey 07102
Attention of: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
MORTGAGE LOAN PURCHASE AGREEMENT
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 and marketable title to, and was the sole
owner of, each Mortgage Loan, and the Seller is transferring such Mortgage
Loan free and clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan. Upon consummation
of the transactions contemplated by the Mortgage Loan Purchase Agreement,
the Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except if such Mortgage Loan is a Mortgage Loan as to which a portion of
the funds disbursed are being held in escrow or reserve accounts) and there
is no requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed 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 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
I-1
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person.
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 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 due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in 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) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage
for such other Mortgage Loan, none of which, individually or in the
aggregate, materially and adversely interferes with the current use of the
Mortgaged Property or the security
I-2
intended to be provided by such Mortgage or with the Mortgagor's ability to
pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to cross-collateralized 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 with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if
not filed and/or recorded, have been submitted in proper form for filing
and recording) in all public places necessary at the time of the
origination of 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, and the Mortgages, security agreements, chattel Mortgages or
equivalent documents related to and delivered in connection with the
related Mortgage Loan establish and create a valid and enforceable lien and
priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting
the enforcement of creditor's rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or control
of such items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property have been paid, or an escrow of funds in an
amount sufficient to cover such payments has been established. For purposes
of this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and to
the Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable mortgage loans by the Seller,
each related Mortgaged Property was free and clear of any material damage
(other than deferred maintenance for which escrows were established at
origination) that would 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.
I-3
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 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 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; 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 or (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 mobile home park, such Mortgaged Property is also covered by
business interruption or rental loss insurance, in an amount at least equal
to 12 months of operations of the related Mortgaged Property (or in the
case of a Mortgaged Property without any elevator, 6 months); and 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
I-4
forth in the related Mortgage, any insurance proceeds in 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 30 days prior written notice to the Mortgagee (or, with
respect to non-payment, 10 days prior written notice to the Mortgagee) or
such lesser period as prescribed by applicable law. Each Mortgage requires
that the Mortgagor maintain insurance as described above or permits the
Mortgagee to require insurance as described above, and permits the
Mortgagee to purchase such insurance at the Mortgagor's expense if
Mortgagor fails to do so.
14. Other than payments due but not yet 30 days or more delinquent, to
the Seller's actual knowledge, based upon due diligence customarily
performed with the servicing of comparable mortgage loans by prudent
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 12 months (or since the date of origination if such Mortgage Loan has
been originated within the past 12 months), has not been, 30 days or more
past due in respect of any Scheduled Payment.
I-5
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the
prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation except
as expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and
such interest in real property was the only security for such Mortgage Loan
as of the Testing Date (as defined below), or (b) the fair market value of
the interest in real property which secures such Mortgage Loan was at least
equal to 80% of the principal amount of 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, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s), updates or transaction screens referenced herein, has no
actual knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property
that was not disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term is
defined in the Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM), with
respect to the related Mortgaged Property and the same have not
I-6
been subsequently addressed in all material respects, then either (i) an
escrow greater than 100% of the amount identified as necessary by the
environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the 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 secured creditor 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 or (v) such conditions or circumstances were
investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured by
an environmental insurance policy have been delivered to or disclosed to
the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable, non-judicial
foreclosure, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium, redemption, liquidation or
similar 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, and no Mortgaged
Property is the subject of, 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 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
I-7
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 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
I-8
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 any material and adverse extent (unless affirmatively covered
by title insurance).
29. With respect to at least 95% of the Seller's 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 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.
I-9
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.
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.
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
I-10
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 years after the Closing Date, and (b) only with substitute
collateral constituting "government securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to
make all scheduled payments under the Mortgage Note. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (ii) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (iii) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
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
I-11
Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written consent
of the holder thereof, by any lien securing the payment of money junior to
or of equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmen's liens that become payable after the after the Cut-off
Date of the related Mortgage Loan).
I-12
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained a Secured Creditor
Environmental Insurance Policy.
[NONE]
I-13
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than 30 days after the Closing Date and such Ground Lease
permits the interest of the lessee thereunder to be encumbered by the
related Mortgage or, if consent of the lessor thereunder is required, it
has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors
or assigns, except termination or cancellation if (a) an event of default
occurs under the Ground Lease, (b) notice thereof is provided to the
mortgagee and (c) such default is curable by the mortgagee as provided in
the Ground Lease but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due but
not yet 30 days or more delinquent, (a) there is no material default, and
(b) there is no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a material
default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to
the mortgagee. The ground lease or ancillary agreement further provides
that no notice 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 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, or to the payment or defeasance of the outstanding
principal balance of the Mortgage Loan, together with any accrued interest
(except in cases where a different allocation would not be viewed as
commercially unreasonable by any commercial mortgage lender, taking into
account the relative duration of the ground lease and the related Mortgage
and the ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
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 (SET FORTH IN SCHEDULE I)
EXCEPTION TO REPRESENTATION 2 (COMPLIANCE WITH LAW)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
All Mortgage Loans If not exempt from such requirements, each
Mortgage Loan complied with the requirements of
such laws to the extent necessary for the
lender to obtain the practical realization of
the rights and benefits set forth in the
related loan documents, subject to the
exceptions set forth in representation (5).
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 6 (NO OFFSET)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
All Mortgage Loans This representation is made subject to the
exceptions set forth in representation (5).
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 13 (INSURANCE)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
All Mortgage Loans Each Mortgaged Property is covered by
comprehensive general liability insurance in an
amount not less than $1 million.
--------------------------------------------------------------------------------
Loan No. 225 (Gardena Capri The related Mortgaged Property has a PML of 38%
Apartments) and a PL of 19% but is not covered by
earthquake insurance; however the lender
obtained a recourse guaranty from the borrower
and the guarantor that covers costs associated
with partial or total damage to the Mortgaged
Property as a result of an earthquake, up to
the amount of the original indebtedness plus
other costs and expenses permitted to be
secured by the mortgage.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 14 (NO DEFAULT)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
All Mortgage Loans The loan documents for each Mortgage Loan
--------------------------------------------------------------------------------
III-1
--------------------------------------------------------------------------------
do not expressly state that "no Person or party
other than the holder of such Mortgage Note may
declare an event of default or accelerate the
related indebtedness under either of such
Mortgage or Mortgage Note."
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 16 (MORTGAGE RATE)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
Loan ▇▇. ▇▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) Under the conditions specified in the related
loan documents, in the event that, on February
1, 2006, "base rent collections" for any
preceding calendar month during the term of the
Mortgage Loan have not been at least
$151,615.00 or more for at least one calendar
month, then the interest rate will on (and
including) February 5, 2006 and for so long as
the Mortgage Loan remains outstanding
hereunder, be increased by ten (10) basis
points; provided, however, that in the event
that the borrower deposits with the lender a
letter of credit meeting the conditions
specified in the related loan documents on or
before February 5, 2006, then the interest rate
will be increased by five (5) basis points
instead of ten (10) basis points on February 5,
2006. In addition, in the event that on August
1, 2006, "base rent collections" for any
preceding calendar month during the term of the
Mortgage Loan have not been at least
$151,615.000 or more for at least one calendar
month, then the interest rate will, on (and
including) August 5, 2006 and for so long as
the Mortgage Loan remains outstanding
hereunder, be increased by fifteen (15) basis
points; provided, however, that in the event
that the borrower deposits with the lender a
letter of credit meeting the conditions
specified in the related loan documents, then
the interest rate will increased by ten (10)
basis points instead of fifteen (15) basis
points on August 5, 2006. Thereafter, unless
and until "base rent collections" have been at
least $151,615.000 or more for at least one
calendar month during the remaining term of the
Mortgage Loan, then the interest rate will, on
(and including) November 5th, February 5th, May
and August 5th of each
--------------------------------------------------------------------------------
III-2
--------------------------------------------------------------------------------
year for so long as the Mortgage Loan remains
outstanding, be increased by ten (10) basis
points on each such date. In conjunction with
any such increase of the interest rate, the
remaining principal balance of the Mortgage
Loan will be reamortized for the remaining term
of the Mortgage Loan based on the number of
months contained in the original amortization
schedule for the Mortgage Loan less the number
of monthly payments of principal and interest
actually made by the borrower.
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 23 (DUE-ON-SALE)
--------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
--------------------------------------------------------------------------------
Loan No. 35 (Rockaway Center) The borrower has existing debt in the original
principal amount of $5,000,000, secured by a
pledge of its equity interests, to EGDC
Rockaway, Inc.
The partners or members of the related borrower
are permitted to transfer their interest to a
third party so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ or another person acceptable to the
lender maintains a controlling interest in such
borrower.
--------------------------------------------------------------------------------
Loan No. 71 (Overlook at An equity owner of the borrower has existing
▇▇▇▇▇▇ ▇▇▇▇ Apartments) debt in the original principal amount of
$2,700,000, secured by a pledge of its limited
partnership interests, to ▇▇▇ ▇▇▇▇▇▇ Profit
Sharing Retirement Trust.
--------------------------------------------------------------------------------
Loan No. 6 (▇▇▇▇▇▇▇▇ Mall) The loan documents permit the equity owner of
the related borrower to incur mezzanine debt
subject to satisfaction of various conditions
specified in such documents.
--------------------------------------------------------------------------------
III-3
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
(SET FORTH IN SCHEDULE II)
[NONE]
III-4
ANNEX A
MORTGAGE LOAN SCHEDULE
A-1
SCHEDULE I PMCF
MORTGAGE LOAN
LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
-----------------------------------------------------------------------------------------------------------------------------------
6 PMCF 1 ▇▇▇▇▇▇▇▇ Mall ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
23 PMCF 2 Shelter Cove Apartments ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
35 PMCF 1 Rockaway Center Mount Pleasant Avenue Rockaway NJ
46 PMCF 1 ▇▇▇▇▇▇▇▇▇ 1515 ▇▇▇▇▇▇▇ 1515 and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
54 PMCF ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
71 PMCF 2 Overlook at ▇▇▇▇▇▇ ▇▇▇▇ Apartments ▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
74 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇
123 PMCF 1 Blossom Hill Plaza ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
128 PMCF 1 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
175 PMCF ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇, 801-841, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
206 PMCF 2 Hawthorne Chateau Apartments ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
214 PMCF 1 Brookhaven Walgreen's ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
225 PMCF 2 Gardena Capri Apartments ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
CUT-OFF CROSS
DATE COLLATERALIZED MASTER
LOAN PRINCIPAL (MORTGAGE MORTGAGE SERVICING ARD LOAN
NUMBER ZIP CODE COUNTY BALANCE LOAN GROUP) RATE FEE RATE (YES/NO)? ARD
------------------------------------------------------------------------------------------------------------------
6 41042 ▇▇▇▇▇ 101,766,252.38 No 4.9530% 0.0200% ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 32,000,000.00 No 5.1400% 0.0200% No
35 07866 ▇▇▇▇▇▇ 24,000,000.00 No 5.7600% 0.0850% ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 19,681,676.36 No 5.5500% 0.0700% Yes 10/01/15
54 12303 Genessee 18,000,000.00 No 5.4400% 0.0300% ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 13,500,000.00 No 5.0100% 0.0200% ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 13,114,352.94 No 5.9400% 0.0300% Yes 04/01/15
90 55416 Hennepin 11,400,000.00 No 5.3500% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 8,991,877.44 No 5.6700% 0.0700% No
128 06824 Fairfield 8,880,631.01 No 5.2000% 0.0200% No
175 16801 Centre County 5,588,269.48 No 5.3800% 0.0200% No
199 78737 ▇▇▇▇ 3,692,315.48 No 5.4200% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ 3,068,151.46 No 5.0900% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,891,431.34 No 5.5300% 0.0700% Yes 09/05/14
225 90249 Los Angeles 1,322,049.02 No 5.0900% 0.0200% No
INTEREST
RESERVE
ADDITIONAL MORTGAGE
LOAN INTEREST LOAN GRACE PERIOD
NUMBER RATE AFTER ARD (YES/NO)? LOAN TYPE (DAYS) (NOTE 5)
-------------------------------------------------------------------------------------------------------------------
6 Yes Balloon 0
23 Yes Partial IO/Balloon 0
35 Yes Partial IO/Balloon 0
46 Greater of Initial Interest Rate + 2% or Treasury Rate + 2% Yes ARD 5
54 Yes Partial IO/Balloon 0
71 Yes Partial IO/Balloon 0
74 Greater of Initial Interest Rate + 2% or Treasury Rate + 2% Yes ARD 5
90 Yes Partial IO/Balloon 0
123 Yes Balloon 0
128 Yes Balloon 0
175 Yes Balloon 0
199 Yes Balloon 0
206 Yes Balloon 0
214 Greater of Initial Interest Rate + 2% or Treasury Rate + 2% Yes ARD 0
225 Yes Balloon 0
PERIODIC
PAYMENT
SCHEDULED ON FIRST ORIGINAL TERM REMAINING
LOAN MATURITY DUE DATE TO MATURITY / TERM TO MATURITY /
NUMBER DATE/ARD AFTER CLOSING ARD (MONTHS) ARD (MONTHS)
-------------------------------------------------------------------------------------------------------------------
6 09/10/12 544,631.92 84 82
23 10/10/15 137,066.67 120 119
35 10/05/15 115,200.00 120 119
46 10/01/35 112,473.22 120 119
54 09/05/15 81,600.00 120 118
71 09/05/15 56,362.50 120 118
74 04/01/35 78,632.20 120 113
90 09/05/15 50,825.00 120 118
123 10/05/15 52,065.06 120 119
128 09/10/15 48,870.87 120 118
175 09/05/15 31,375.85 120 118
199 09/05/15 20,822.86 120 118
206 09/05/15 16,676.82 120 118
214 09/05/30 17,860.53 108 106
225 09/05/15 7,185.94 120 118
STATED STATED
ORIGINAL REMAINING
AMORTIZATION AMORTIZATION DEFEASANCE
LOAN TERM TERM LOAN BORROWER'S
NUMBER (MONTHS) (MONTHS) (YES/NO)? INTEREST
----------------------------------------------------------------------------------------------------------------------
6 360 358 Yes Fee Simple
23 360 360 Yes Fee Simple
35 360 360 Yes Fee Simple
46 360 359 Yes Fee Simple
54 360 360 Yes Fee Simple
71 360 360 Yes Fee Simple
74 360 353 Yes Fee Simple
90 360 360 No Fee Simple
123 360 359 Yes Fee Simple
128 360 358 Yes Fee Simple
175 360 358 Yes Fee Simple
199 360 358 Yes Fee Simple
206 360 358 Yes Fee Simple
214 300 298 Yes Fee Simple
225 360 358 Yes Fee Simple
ESCROWED
LOAN PROPERTY LOCKBOX ANNUAL REAL
NUMBER PROPERTY SIZE SIZE TYPE (YES/NO)? ESTATE TAXES
----------------------------------------------------------------------------------------------------------------------
6 298,078 SF Hard 0
23 300 Units None 211,733
35 241,937 SF Hard 792,300
46 375,000 SF Springing Hard 0
54 210,464 SF None 721,260
71 276 Units None 0
74 82,735 SF Springing Hard 44,476
90 114,620 SF None 0
123 48,445 SF None 171,455
128 50,108 SF None 129,968
175 152 Units None 108,336
199 60,606 SF None 77,399
206 58 Units None 26,672
214 13,855 SF Springing Hard 0
225 28 Units None 13,415
ESCROWED
ESCROWED REPLACEMENT
ESCROWED REPLACEMENT RESERVES CURRENT
LOAN ANNUAL RESERVES ANNUAL
NUMBER INSURANCE INITIAL DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------
6 0 0 0
23 75,403 500,000 75,000
35 43,414 0 15,600
46 0 0 0
54 63,457 0 0
71 0 0 0
74 20,007 0 13,020
90 0 0 0
123 13,859 0 12,108
128 0 0 0
175 83,238 0 53,196
199 7,041 0 9,096
206 16,666 0 14,496
214 0 0 3,744
225 6,834 0 9,096
LOAN
NUMBER ESCROWED TI/LC RESERVES INITIAL DEPOSIT
-----------------------------------------------------------------------------------------------------------------------------------
6 0
23 NAP
35 4,000,000
46 0
54 400,000 LOC (Vacant Space Credit Enhancement) 100,000 LOC (Vacant Space Leasing Reserve)
71 NAP
74 0
90 565,000 (Leasing Reserve), 167,590 (Northco Capital Reserve), 89,695 (Financial Independents), 19,175 (Lions Gate Reserve)
123 175,000
128 450,000
175 NAP
199 0
206 NAP
214 0
225 NAP
INITIAL
DEFERRED INITIAL
LOAN MAINTENANCE ENVIRONMENTAL
NUMBER Escrowed TI/LC Reserves Current Annual Deposit DEPOSIT DEPOSIT
-----------------------------------------------------------------------------------------------------------------------------
6 0 0 0
23 NAP 0 0
35 0 0 0
46 0 0 0
54 0 0 0
71 NAP 0 0
74 0 0 0
90 69,600 0 0
123 0 29,600 0
128 0 0 0
175 NAP 59,563 0
199 54,000, LOC in the amount of $80,000 may replace escrowed funds 0 0
206 NAP 31,300 0
214 0 0 0
225 NAP 2,363 0
ENVIRONMENTAL
LOAN INSURANCE
NUMBER HOLDBACK RESERVE LOC POLICY
-------------------------------------------------------------------------------------------
6
23
35
46
54 Yes, $100,000 LOC for TI/LC
71
74
90
123
128
175
199
206
214
225