Loan No.: 94-0950186
BORROWER'S CERTIFICATE
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THIS BORROWER'S CERTIFICATE ("Certificate") is executed on June 6,
2005, by the undersigned ("Borrower") in favor of Wells Fargo Bank N.A.,
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formerly known as Wells Fargo Bank Minnesota, N.A. as trustee for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C5 ("Lender").
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RECITALS:
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To induce Lender to permit Borrower to assume, pursuant to the Consent
and Assumption Agreement With Release and Modification of Loan Documents (the
"Assumption Agreement") executed contemporaneously herewith (the "Assumption"),
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the loan made September 18, 2003, by PNC Bank, National Association ("Original
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Lender"), to Deer Valley Financial Center, LLC, Huntington Company, L.L.C. and
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Geneva Company, L.L.C., each an Arizona limited liability company, and Metzger
Deer Valley, LLC, a Delaware limited liability company (collectively, "Original
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Borrower") (the "Loan"), evidenced by a Promissory Note (the "Note") executed
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contemporaneously therewith by Original Borrower, as maker, and payable to the
order of Original Lender, which Note is secured by the Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing ("Security
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Instrument") encumbering the Property (hereinafter defined) and the Other
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Security Documents (as defined in the Security Instrument), and which Note and
Loan have been assigned to Lender, Borrower, in consideration of the Assumption,
certifies, represents and warrants to Lender that as of the date record title of
the Property is conveyed to Borrower:
1. Borrower is the owner of the real and personal property described in
the Security Instrument (the "Property"), including without limitation, the real
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property described in Exhibit A attached hereto and made a part hereof. Borrower
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is the only person (other than Lender) who possesses any interest in the right
to receive any payments due under the Leases (as defined in the Security
Instrument).
2. The Property is now free of all liens, encumbrances and all other
matters affecting title thereto except: (a) for those matters shown in the
lender's title insurance policy issued to Lender insuring the lien of the
Security Instrument; and (b) the financing statements described in Exhibit B
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attached hereto and made a part hereof.
3. All improvements located upon the Property have been fully completed
and all costs and expenses of construction have been fully paid. Except current
bills for minor maintenance and repair (none of which are overdue), complete
and final payment has been made for all construction, repairs or new
improvements made to the Property within the applicable period for filing lien
claims in the state in which the real property encumbered by the Security
Instrument is located.
4. Except as disclosed on Exhibit B, there are no chattel mortgages,
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conditional sales contracts, bills of sale, financing statements, retention of
title agreements, security agreements or equipment or personal property leases
affecting, or any unpaid bills related to, any portion of the Property,
including without limitation, any fixtures, attachments, appliances, equipment,
machinery and other articles attached to or located on or within the Property.
5. Except for the tenancy rights of tenants under the Leases (none of
which tenants hold any unrecorded deeds, contracts or options to purchase all or
any part of the Property), Borrower is in possession of the Property and there
are no other persons, firms, corporations or entities having any right of
possession of any of the Property under any lease, option, deed or other written
instrument of any kind or character.
6. Borrower possesses all necessary approvals and authority to execute
and deliver the Assumption Agreement and all other documents given in connection
therewith.
7. Neither Borrower nor any managing member, general partner or similar
controlling entity in Borrower is the subject of any pending: (a) petition in
bankruptcy (voluntary or otherwise); (b) assignment for the benefit of
creditors; (c) petition for the appointment of a receiver or trustee or seeking
reorganization, arrangement, composition, extension or adjustment of any
obligations of Borrower or any managing member, general partner or similar
controlling entity in Borrower; or (d) other action or proceeding brought under
any federal or state bankruptcy laws or any similar laws. There are no
unsatisfied judgments against Borrower or any managing member, general partner
or similar controlling entity in Borrower.
8. All financial statements and other financial information previously
submitted to Lender by Borrower are true, correct and complete in all material
respects and fairly present the financial condition of Borrower or the Property
for the specified period(s) of time, and (except as disclosed to Lender in
writing) no material adverse changes in the financial condition of either
Borrower or the Property have occurred from the date of such financial
statements and other financial information.
9. The Property is in good repair and free of any waste, defective
condition or damage by fire or other cause which has not been repaired. The
Property is not subject to any pending condemnation or eminent domain
proceedings, and based upon Borrower's best knowledge, after diligent inquiry,
no such condemnation or eminent domain proceedings are pending or threatened
against any of the Property.
10. All premiums for any Policies (as defined in the Security
Instrument) which became due and payable prior to the date of this Certificate
have been paid, and the benefits of coverages provided pursuant to the Policies
has not been materially impaired in any manner.
11. Borrower executed and delivered the Assumption Agreement and all
other documents given in connection therewith for its own account and not as an
agent, nominee or trustee for any other party or entity. No part of the proceeds
of the Loan were used for the purposes of financing the construction or
rehabilitation of the Property, for personal, family or household purposes, or
for the purpose (whether immediate, incidental or ultimate) of "purchasing" or
"carrying" any "margin security", as such terms are defined in Regulation G
(12 C.F.R., Chapter II, Part 207) of the Board of Governors of the Federal
Reserve System or for the purpose of reducing or retiring any indebtedness
which was originally incurred for any such purpose.
12. Borrower has obtained all required inspections, licenses, permits,
authorizations, certificates and approvals of all applicable governmental
authorities and agencies for the use, occupancy and operation of the Property in
accordance with the intended uses previously communicated to Lender in writing,
including without limitation, certificates of occupancy and fire underwriter
certificates. No notice has been received by Borrower that it has failed to
obtain any such inspections, licenses, permits, authorizations, certificates and
approvals.
13. Borrower has complied with, and the Property is in compliance with,
all laws, statutes, rules, regulations, codes, ordinances and insurance
requirements applicable to the Property (the "Applicable Laws") related to the
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construction, use, occupancy or operation of the Property, including without
limitation, those related to zoning, building, land use, the environment,
pollution control, fire, health and safety. There are presently no pending
actions or proceedings of any kind instituted by any governmental authority or
agency against Borrower based upon any charge or complaint that any of the
Property, or the operation thereof, is in material non-compliance with, or is
being used, operated or occupied unlawfully or in violation of any of the
Applicable Laws, and, as of the date hereof, no notice has been received by
Borrower that any such action or proceeding is imminent or is being considered.
14. As of the date hereof, Borrower is: (a) in good standing in and is
qualified to do business in the state of its organization; (b) in good standing
in and is authorized to do business in the state in which the Property is
located; and (c) a special purpose and single asset entity, which holds no
material assets other than the Property, has no material debt other than the
Loan (except for trade payables or accrued expenses in the ordinary course of
business) and is engaged in no other business other than owning and operating
the Property. Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to perform
its obligations pursuant to the Note, the Security Instrument, the Other
Security Documents and the Assumption Agreement and all other documents given in
connection therewith, and that the Note, the Security Instrument, the Other
Security Documents and the Assumption Agreement and all other documents given in
connection therewith constitute valid and binding obligations of Borrower.
15. Neither Borrower nor any person or entity owning a beneficial
interest in Borrower is a "foreign person", "foreign corporation", "foreign
partnership", "foreign trust", or "foreign estate" under the provisions of
Section 1445 of the Internal Revenue Code. Borrower's federal taxpayer
identification number is set forth immediately following its signature below.
16. The Property is located on a dedicated, public, all-weather road or
has access to an irrevocable easement permitting ingress and egress, which
ingress and egress complies with all applicable laws, ordinances and regulations
and is adequate to service the Property.
17. The Property is serviced by all utilities necessary for the
operation of the business currently conducted thereon (including natural gas,
telephone, electric, public water and sanitary and storm sewer systems) which
comply with all applicable laws, ordinances and regulations, and which are
adequate to service the Property.
18. The Property has parking and other amenities necessary for the
operation of the business currently conducted thereon which comply with all
applicable laws, ordinances and regulations and are adequate to service the
Property.
19. The Property is not relied upon by, and does not rely upon, any
building or improvement not part of the Property to fulfill any zoning, building
code or other governmental or municipal requirement for structural support or
the furnishing of any essential building systems or utilities, except to the
extent of any valid and existing reciprocal easement agreements shown in the
title insurance policy insuring the lien of the Security Instrument.
20. This Certificate is made with the knowledge and intent that Lender
will rely on the warranties, representations and certifications herein contained
in permitting the Assumption. This Certificate shall inure to the benefit of
Lender and any subsequent holder of the Note and beneficiary under the Security
Instrument and shall be binding upon Borrower, its heirs, executors,
administrators, successors and assigns and any subsequent owner of the Property.
21. This Certificate may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which when taken together
shall constitute one and the same Certificate.
IN WITNESS WHEREOF, Borrower has executed this Borrower's Certificate
to be effective as of the day and year first above written.
"Borrower"
A&B DEER VALLEY LLC,
a Delaware limited liability company
By: A & B Properties, Inc.,
a Hawaii corporation
Manager
By: /s/ R. K. Sasaki
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Print Name: R. K. Sasaki
Its: President
By: /s/ Paul W. Hallin
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Print Name: Paul W. Hallin
Its: Vice President
Taxpayer ID No. 99-0032630
ABP DEER VALLEY LLC,
a Delaware limited liability company
By: A & B Properties, Inc.,
a Hawaii corporation
Manager
By: /s/ R. K. Sasaki
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Print Name: R. K. Sasaki
Its: President
By: /s/ Paul W. Hallin
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Print Name: Paul W. Hallin
Its: Vice President
Taxpayer ID No. 99-0070429
[Signatures continued on the next page]
WDCI DEER VALLEY LLC,
a Delaware limited liability company
By: A & B Properties, Inc.,
a Hawaii corporation
Manager
By: /s/ R. K. Sasaki
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Print Name: R. K. Sasaki
Its: President
By: /s/ Paul W. Hallin
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Print Name: Paul W. Hallin
Its: Vice President
Taxpayer ID No. 99-0143448
ACKNOWLEDGMENT(S)
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STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared
R. K. Sasaki, to me personally known, who being by me duly sworn, did say
that he is the President of A & B Properties, Inc, a Hawaii corporation, the
Manager of A&B Deer Valley LLC, a Delaware limited liability company, and that
the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
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SEAL (Signature)
Suzanne K. McGuigan
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(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared Paul W.
Hallin, to me personally known, who being by me duly sworn, did say
that he is the Vice President of A & B Properties, Inc, a Hawaii corporation,
the Manager of A&B Deer Valley LLC, a Delaware limited liability company, and
that the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said Vice President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
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SEAL (Signature)
Suzanne K. McGuigan
------------------------------------------------
(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared R. K.
Sasaki, to me personally known, who being by me duly sworn, did say
that he is the President of A & B Properties, Inc, a Hawaii corporation, the
Manager of ABP Deer Valley LLC, a Delaware limited liability company, and that
the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
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SEAL (Signature)
Suzanne K. McGuigan
------------------------------------------------
(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared Paul W.
Hallin, to me personally known, who being by me duly sworn, did say
that he is the Vice President of A & B Properties, Inc, a Hawaii corporation,
the Manager of ABP Deer Valley LLC, a Delaware limited liability company, and
that the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said Vice President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
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SEAL (Signature)
Suzanne K. McGuigan
------------------------------------------------
(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared R. K.
Sasaki, to me personally known, who being by me duly sworn, did say
that he is the President of A & B Properties, Inc, a Hawaii corporation, the
Manager of WDCI Deer Valley LLC, a Delaware limited liability company, and that
the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
------------------------------------------------
SEAL (Signature)
Suzanne K. McGuigan
------------------------------------------------
(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
STATE OF HAWAII )
) ss.
COUNTY OF HONOLULU )
On this 2 day of June, 2005, before me personally appeared Paul W.
Hallin, to me personally known, who being by me duly sworn, did say
that he is the Vice President of A & B Properties, Inc, a Hawaii corporation,
the Manager of WDCI Deer Valley LLC, a Delaware limited liability company, and
that the instrument was signed and sealed in behalf of the Hawaii corporation by
authority of its Board of Directors, and said Vice President acknowledged the
instrument to be the free act and deed of the corporation and of the limited
liability company.
Given under my hand and official seal this 2 day of June, 2005.
/s/ Suzanne K. McGuigan
------------------------------------------------
SEAL (Signature)
Suzanne K. McGuigan
------------------------------------------------
(Typed or printed name)
NOTARY PUBLIC in and for the State of Hawaii
My appointment expires 2/18/09
EXHIBIT A
Legal Description
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The real property situated in the County of Maricopa, State of Arizona,
described as follows:
Lot 1, DEER VALLEY FINANCIAL CENTER, a subdivision recorded in Book 542 of Maps,
page 42, and Certificate of Correction recorded in Recording No. 2003-0591121,
records of Maricopa County, Arizona
EXHIBIT B
Financing Statements and Other Encumbrances
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Financing Statements: As shown in the Assumption Agreement.
Other Encumbrances: NONE