EXHIBIT 99.3
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 22, 2006
(this "Agreement"), is entered into between Eurohypo AG, New York Branch (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase one
(1) commercial mortgage loan (the "Mortgage Loan") identified on the schedule
(the "Mortgage Loan Schedule") annexed hereto as Schedule II. The Purchaser
intends to deposit the Mortgage Loan, 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 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, dated as of March 1,
2006 (the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
Wachovia Bank, National Association ("Wachovia Bank") as master servicer (the
"Master Servicer"), Midland Loan Services, Inc. as special servicer (the
"Special Servicer") and LaSalle Bank National Association as trustee (the
"Trustee"). Capitalized terms used but not defined herein (including the
schedules attached hereto) have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of March 22, 2006 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), EHY Securities
(USA), LLC ("EHY"), Banc of America Securities LLC ("Banc of America"), Xxxxxxx,
Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"); Xxxxxxx Xxxxx, Countrywide Securities, EHY, Banc of America, Xxxxxxx
Sachs and Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"),
whereby the Purchaser will sell to the Underwriters all of the Certificates that
are to be registered under the Securities Act of 1933, as amended (such
Certificates, the "Publicly-Offered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated as of March 22, 2006 (the
"Certificate Purchase Agreement"), with Xxxxxxx Xxxxx for itself and as
representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
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 Loan identified on the Mortgage Loan Schedule. The Mortgage Loan is
expected to have an aggregate principal balance of $65,000,000 (the "Eurohypo
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 Eurohypo 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 $2,141,833,152 (subject to a variance of plus or minus
5%). The purchase and sale of the Mortgage Loan shall take place on March 30,
2006 or such other date as shall be mutually acceptable to the parties to this
Agreement (the "Closing Date"). The consideration (the "Purchase Consideration")
for the Mortgage Loan shall be equal to (i) 100.8847% of the Eurohypo Mortgage
Loan Balance as of the Cut-off Date, plus (ii) $296,666, which amount represents
the amount of interest accrued on the Eurohypo Mortgage Loan Balance, as agreed
to by the Seller and the Purchaser.
The Purchase Consideration 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 Loan.
(a) Effective as of the Closing Date, subject only to the
Seller's receipt of the Purchase Consideration and the satisfaction or waiver of
the conditions to closing set forth in Section 5 of this Agreement (which
conditions shall be deemed to have been satisfied or waived upon the Seller's
receipt of the Purchase Consideration), 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 Loan 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. The Mortgage Loan Schedule, as it may be amended, shall conform to the
requirements set forth in this Agreement and the Pooling and Servicing
Agreement.
(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 Loan 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 Loan due on or before
the Cut-off Date and principal prepayments thereon), shall belong to, and be
promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee (i) on or before
the Closing Date, the documents and instruments specified below with respect to
the Mortgage Loan that are Specially Designated Mortgage Loan Documents and (ii)
on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to the Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, the "Mortgage File"). The Mortgage File 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 with respect to the Mortgage Loan shall contain
the following documents:
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(i) (A) the original executed Mortgage Note for the Mortgage
Loan, including any power of attorney related to the execution thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), 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 ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, or in blank, and (B) a copy of
the executed Mortgage Note for each related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of 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 completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), 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 ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1 (or in favor of LaSalle Bank National
Association, as trustee for the registered holders of ML-CFC Commercial
Mortgage Trust 2006-1, Commercial Mortgage Pass-Through Certificates,
Series 2006-1, and in its capacity as lead lender on behalf of the
holder(s) of the related Non-Trust Loan(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 ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1 (or
in favor of LaSalle Bank National Association, as trustee for the
registered holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial
Mortgage Pass-Through Certificates, Series 2006-1, and in its capacity as
lead lender on behalf of the holder of the related Non-Trust Loan(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;
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(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 a 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 or other evidence of filing of any
prior UCC Financing Statements in favor of the originator of the Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, as
assignee (or in favor of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1, and in its
capacity as lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) an original or copy of any intercreditor agreement relating
to permitted debt of the Mortgagor and any intercreditor agreement
relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow
or reserve agreement, any security agreement, any management agreement,
any agreed upon procedures letter, any lockbox or cash management
agreements, any environmental reports or any letter of credit, in each
case relating to the Mortgage Loan;
(xii) if the Mortgage Loan is secured by a hospitality property, a
signed copy of any franchise agreement and/or franchisor comfort letter;
and
(xiii) an original or copy of the related Loan Combination
Intercreditor Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to the Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of the Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and
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any other recordable documents relating to each such Mortgage Loan in favor of
the Trustee that is referred to in clause (iv) of the definition of "Mortgage
File" and each UCC Financing Statement assignment in favor of the Trustee that
is referred to in clause (viii) of the definition of "Mortgage File." Each such
assignment and UCC Financing Statement assignment shall reflect that the
recorded original should be returned by the public recording office to the
Trustee following recording, and each such assignment and UCC Financing
Statement assignment shall reflect that the file copy thereof should be returned
to the Trustee following filing; provided, that in those instances where the
public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Recording/Filing Agent shall obtain
therefrom a certified copy of the recorded original. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loan, (b) are
reasonably necessary for the ongoing administration and/or servicing of the
Mortgage Loan by the Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loan, shall 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); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting, legal
or other due diligence analyses, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Trustee, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for the Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Trustee or any other
person because the delivery of the mortgage loan checklist is being provided to
the Trustee solely for its administrative convenience.
(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 the Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to
the Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such
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data is available) contemplated by the CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Operating Statement Analysis Report and the CMSA
Property File.
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 foreign banking corporation, incorporated
under the laws of the Federal Republic of Germany, acting through its New
York Branch, which is duly licensed and authorized to transact business in
the State of New York under the Banking Law of the State of New York. The
Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(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 license to transact business
in the State of New York, (B) violate any law or regulation or any
administrative decree or order to which it is subject or (C) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a 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 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 materially and
adversely affect its performance hereunder.
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(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any charter 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) None of the sale of the Mortgage Loan by the Seller, the
transfer of the Mortgage Loan to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loan.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by the
Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the Mortgage Loan to the Purchaser as a sale of the Mortgage Loan to
the Purchaser in exchange for consideration consisting of a cash amount
equal to the Purchase Consideration. The consideration received by the
Seller upon the sale of the Mortgage Loan to the Purchaser will constitute
at least reasonably equivalent value and fair consideration for the
Mortgage Loan. The Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Mortgage Loan to
the Purchaser. The Seller is not selling the Mortgage Loan to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller.
(x) The Prospectus Supplement contains all the information
that is required to be provided in respect of the Seller (that arise from
its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loan, the related Mortgagors and the related Mortgaged Properties pursuant
to Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with
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respect to (and solely with respect to) the Mortgage Loan, subject, however, to
the exceptions set forth on Annex A to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to the Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to the 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 materially and
adversely affects the value of the 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 losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the Mortgage Loan (which, for the purposes of this clause
(i), shall include an REO Loan) at the applicable Purchase Price (as defined in
the Pooling and Servicing Agreement) not later than the end of such 90-day
period or (ii) substitute a Qualified Substitute Mortgage Loan for the Mortgage
Loan (which, for purposes of this clause (ii), shall include an REO 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 Collection Account any Substitution Shortfall Amount in connection
therewith; provided, however, that, unless the Document Defect or Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, if such 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, the Seller shall have an additional
90 days to complete such cure (or, failing such cure, to repurchase or
substitute the Mortgage Loan (which, for purposes of such repurchase or
substitution, shall include an REO 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 the reason(s) such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Document Defect or Breach will be
cured within the additional 90-day period; and provided, further, that no
Document Defect (other than with respect to the Specially Designated Mortgage
Loan Documents) shall be considered to materially and adversely affect the
interests of the Certificateholders or the value of the Mortgage Loan unless the
document with respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the Mortgage Loan, defending any claim asserted by any Mortgagor or third
party with respect to the Mortgage Loan, establishing the validity or priority
of any lien or any collateral securing the Mortgage Loan or for any immediate
servicing obligations.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the interests
of the Certificateholders therein) with respect to one or more Mortgaged
Properties with respect to the Mortgage Loan, the Seller shall not be obligated
to repurchase or substitute the Mortgage Loan if (i) the affected Mortgaged
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Property(ies) may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection with such release, (ii) the remaining Mortgaged Property(ies) satisfy
the requirements, if any, set forth in the 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.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the Master Servicer or the Special
Servicer from the related Mortgagor and not a repurchase or substitution of the
Mortgage Loan. Following the Seller's remittance of funds in payment of such
costs and expenses, the Seller shall be deemed to have cured the breach of
representation 30 in all respects. To the extent any fees or expenses that are
the subject of a cure by the Seller are subsequently obtained from the related
Mortgagor, the cure payment made by the Seller shall be returned to the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller, acting in
its sole discretion, may effect a repurchase or substitution (in accordance with
the provisions of this Section 3(c) setting forth the manner in which the
Mortgage Loan may be repurchased or substituted) of the Mortgage Loan, if
representation 30 set forth on Schedule I has been breached as to the Mortgage
Loan, in lieu of paying the costs and expenses that were the subject of the
breach of representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of the Mortgage Loan contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the Collection Account, and, if applicable, 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, (i) the Trustee shall be required to execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller the legal and beneficial ownership of the
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 the
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 the repurchased or deleted Mortgage Loan(s).
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At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loan 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 REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for the Mortgage Loan shall be permitted under this Agreement if,
after such substitution, the aggregate of the Stated Principal Balances of all
Qualified Substitute Mortgage Loans which have been substituted for the Mortgage
Loan exceeds 10% of the aggregate Cut-off Date Balance of the Mortgage Loan and
the Other Mortgage Loans. 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 or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in the 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, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants 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 New York and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(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 (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other instrument to which
the Purchaser is a party
10
or by which the Purchaser is bound, 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.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) 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.
(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loan by the Seller to the
Purchaser as a sale of the Mortgage Loan to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, 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 might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loan
(the "Closing") shall be held at the offices of Sidley Austin LLP 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 Sections 3(a) and 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;
11
(b) All documents specified in Section 6 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, the Seller, the Underwriters 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 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) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of March 22, 2006,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., Countrywide Commercial
Real Estate Finance, Inc., the Purchaser, the Underwriters and the Initial
Purchasers. Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loan on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Agreement to Appointment of Master Servicer, dated as of
March 30, 2006, between the Seller and Wachovia Bank, duly executed by such
parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or
12
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his
attention that would lead him to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage Loan
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loan, in light of the
circumstances under which they were made, not misleading, (ii) 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 Loan or omitted or omit to
state therein a material fact necessary in order to make the statements therein
relating to the Mortgage Loan, in light of the circumstances under which they
were made, not misleading, and (iii) such officer has carefully examined the
Specified Portions (as defined below) of the Memorandum (pursuant to which
certain classes of the Private Certificates are being privately offered) 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 Loan or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loan, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage
Loans" (insofar as the information contained in Annex A-1 relates to the
Mortgage Loan sold by the Seller hereunder), Annex A-2 to the Free Writing
Prospectus, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loan sold by the Seller hereunder), Annex B to the Free Writing
Prospectus entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loan
sold by the Seller hereunder), Annex C to the Free Writing Prospectus, entitled
"Structural and Collateral Term Sheet" (insofar as the information contained in
Annex C relates to the Mortgage Loan sold by the Seller hereunder), the diskette
which accompanies the Free Writing Prospectus (insofar as such diskette is
consistent with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections
of the Free Writing Prospectus (only to the extent that any such information
relates to the Seller or the Mortgage Loan sold by the Seller hereunder and
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement
and exclusive of aggregated numerical information that includes the Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers" and "--The Loan Combination Controlling
Parties", "Summary of Offering Prospectus--The Mortgage Loans and the Mortgaged
Real Properties", "Risk Factors" and "Description of the Mortgage Pool".
13
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loan
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loan sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loan sold by the Seller hereunder),
Annex C to the Prospectus Supplement, entitled "Structural and Collateral Term
Sheet" (insofar as the information contained in Annex C relates to the Mortgage
Loan sold by the Seller hereunder), the diskette which accompanies the
Prospectus Supplement (insofar as such diskette is consistent with Annex X-0,
Xxxxx X-0 and/or Annex B), and the following sections of the Prospectus
Supplement (only to the extent that any such information relates to the Seller
or the Mortgage Loan sold by the Seller hereunder and exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan
Sellers" and "--The Loan Combination Controlling Parties", "Summary of
Prospectus Supplement--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors" and "Description of the Mortgage Pool".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated
March 14, 2006, and relating to the Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum
dated March 22, 2006, and relating to the Private Certificates;
"Prospectus" means the prospectus dated March 22, 2006.
"Prospectus Supplement" means the prospectus supplement dated
March 22, 2006, that supplements the Prospectus and relates to the
Publicly-Offered Certificates; and
"Time of Sale" means March 22, 2006, at 2:45PM.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the charter of the Seller, and
(iii) a certificate of good standing of the Seller issued by the State of New
York not earlier than thirty (30) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
corporate and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters,
14
the Initial Purchasers and each of the Rating Agencies, together with such other
written opinions, including as to insolvency matters, 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 Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loan by the Seller to the
Purchaser as provided in Section 2 of this Agreement be, and be construed as, a
sale of the Mortgage Loan by the Seller to the Purchaser and not as a pledge of
the Mortgage Loan 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 Loan 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 Loan 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 UCC of the
applicable jurisdiction; (ii) the conveyance provided for in Section 2 of this
Agreement 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 Loan, and all amounts payable to the holder of the Mortgage Loan 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 (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account 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 of this Agreement
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC 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 Loan, 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
15
Agreement. The Seller does hereby consent to the filing by the Purchaser of
financing statements relating to the transactions contemplated hereby without
the signature of the Seller
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser and the Trustee any disclosure
information relating to any event, specifically relating to the Seller,
reasonably determined in good faith by the Purchaser as required to be reported
on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting reasonably
appropriate for inclusion in such form) insofar as such disclosure is required
under Items 1117 and 1119 of Regulation AB and Item 1.03 to From 8-K. The Seller
shall use reasonable efforts to deliver proposed disclosure language relating to
any event, specifically relating to the Seller, described under Items 1117 and
1119 of Regulation AB and Item 1.03 to From 8-K to the Trustee and the Purchaser
as soon as reasonably practicable after the Seller becomes aware of such event
and in no event more than two business days following the occurrence of such
event if such event is reportable under Item 1.03 to Form 8-K. The obligation of
the Seller to provide the above referenced disclosure materials will terminate
upon notice or other written confirmation from the Purchaser or the Trustee that
the Trustee has filed a Form 15 with respect to the Trust Fund as to that fiscal
year in accordance with Section 8.16 of the Pooling and Servicing Agreement or
the reporting requirements with respect to the Trust under the Securities
Exchange Act of 1934 have otherwise automatically suspended. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
9 will be used in the preparation of reports meeting the reporting requirements
of the Trust under Section 13(a) and/or Section 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
by facsimile 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
facsimile 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 Loan 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
16
permitted by applicable law, the parties hereto waive any provision of law that
prohibits or renders void or unenforceable any provision hereof.
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; WAIVER OF TRIAL BY JURY. 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. THE PARTIES HERETO
EACH IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF 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 that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that 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 (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable
17
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 hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. [Reserved.]
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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
EUROHYPO AG, NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Executive Director
By: /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxxxxx Xxx
Title: Director
Address for Notices:
Eurohypo AG, New York Branch
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.:
Telephone No.:
Attention: Head of Portfolio Operations
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxxx X. Xxx
------------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx or Director, CMBS
Securitization
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
EUROHYPO MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of the Mortgaged
Property shall mean the value of such Mortgaged Property as determined by the
appraisal (and subject to the assumptions set forth in the appraisal) performed
in connection with the origination of the related Mortgage Loan. For purposes of
this Schedule I, all references to "Mortgage Loans" shall be construed to refer
to the single mortgage loan being sold by the Seller to the Purchaser under the
Agreement and defined as the "Mortgage Loan" under the Agreement.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in March 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
March 2006, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or encumbrances
that are pari passu with the lien of such Mortgage, in any event subject,
however,
to the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment binding upon the title insurer); (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy (or,
if not yet issued, referred to in a pro forma title policy or "marked-up"
commitment binding upon the title insurer); (d) other matters to which like
properties are commonly subject; (e) the rights of tenants (as tenants only)
under leases (including subleases) pertaining to the related Mortgaged Property;
(f) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the
lien of the Mortgage for another Mortgage Loan contained in the same Crossed
Group; and (g) if the related Mortgaged Property consists of one or more units
in a condominium, the related condominium declaration. The Permitted
Encumbrances do not, individually or in the aggregate, materially interfere with
the security intended to be provided by the related Mortgage, the current
principal use of the related Mortgaged Property, the Value of the Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and constitutes
a legal, valid, binding and, subject to the limitations and exceptions set forth
in representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default beyond applicable notice and grace periods. No person other
than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
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6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Mortgagor has not been released from
its obligations under such Mortgage, in whole or in material part. With respect
to each Mortgage Loan, since the later of (a) March 6, 2006 and (b) the closing
date of such Mortgage Loan, the Seller has not executed any written instrument
that (i) impaired, satisfied, canceled, subordinated or rescinded such Mortgage
Loan, (ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance of
doubt, the preceding sentence does not relate to any release of escrows by the
Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate
I-3
Mortgage, such Mortgage (and therefore the related Title Policy) may be in an
amount less than the original principal amount of the Mortgage Loan, but is not
less than the allocated amount of subject parcel constituting a portion of the
related Mortgaged Property. Such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole insured without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for whether, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available) that, (a) the related Mortgaged Property has access
to a public road, and (b) the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen
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meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of
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the Mortgage Loan, has a term ending no sooner than the date which is five years
after the maturity date of the Mortgage Loan to which it relates and either does
not provide for a deductible or the deductible amount is held in escrow and all
premiums have been paid in full. Each Mortgagor represents and warrants in the
related Mortgage Loan documents that except as set forth in certain
environmental reports and to its knowledge it has not used, caused or permitted
to exist and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor (or
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, out-of-pocket expenses and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, 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.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit
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reduction in insurance proceeds for depreciation. Each Mortgaged Property is
also covered by comprehensive general liability insurance in amounts customarily
required by prudent commercial mortgage lenders for properties of similar types.
Each Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which is reasonably estimated
to cover no less than twelve (12) months of rental income), unless such
Mortgaged Property constitutes a manufactured housing community. If any portion
of the improvements on a Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement basis, (2) the outstanding principal balance of such
Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable federal flood insurance program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the
I-7
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan
is a debtor in any state or federal bankruptcy, insolvency or similar
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes
I-8
reflected in written instruments which are a part of the related Mortgage
File; and if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will
I-9
be applied either (i) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or
(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) 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 at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
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21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits
the related Mortgaged Property to be encumbered by any mortgage lien junior to
or of equal priority with the lien of the related Mortgage without the prior
written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. To the Seller's knowledge,
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage. The
related Mortgage Loan documents require the Mortgagor under each Mortgage Loan
to pay all reasonable costs and expenses related to any required consent to an
encumbrance, including any applicable Rating Agency fees, or would permit the
related mortgagee to withhold such consent if such costs and expenses are not
paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was
exempt from, all applicable usury laws in effect at its date of origination.
I-11
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Crossed Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price in connection
therewith; and provided, further, that certain Crossed Groups or individual
Mortgage Loans secured by multiple parcels may permit the related Mortgagor to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision
for any defeasance of mortgage collateral permits defeasance (i) no earlier than
two years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan documents provide that the
related Mortgagor is
I-12
responsible for the payment of all reasonable costs and expenses associated with
defeasance incurred by the related mortgagee, including Rating Agency fees. If
any Mortgage Loan permits assumptions, then the related Mortgage Loan documents
provide that the related Mortgagor is responsible for all reasonable costs and
expenses associated with an assumption incurred by the related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected,
or caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not
I-13
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
(except to the extent required by any cash management provisions of the related
Mortgage Loan documents) except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or
more complete separate tax lots or is subject to an endorsement under the
related Title Policy insuring same, or in certain instances an application has
been made to the applicable governing authority for creation of separate tax
lots, which shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal and/or interest. If any ARD Loan is not paid in full by
its Anticipated Repayment Date, and assuming it is not otherwise in default, (i)
the rate at which such ARD Loan accrues interest will increase by at least two
(2) percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been
filed and/or recorded, or submitted for filing and/or recording (or submitted to
a title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted for filing and/or recording
to a title company pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee. 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 or
recording of UCC Financing Statements are required in order to effect such
perfection.
I-14
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured
in whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
(identified on Annex D) that consists of a leasehold estate that is not a
material ground lease, which ground lease is not the subject of representation
18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or,
I-15
if and to the extent not so complied with, the escrowed funds (or an allocable
portion thereof) have not been released except in accordance with the terms of
the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan,
the related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed,
in the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
Representation #2-Ownership of Mortgage Loans
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
--------------------------------------------------------------------------------
Representation #4- Lien; Valid Assignment
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
--------------------------------------------------------------------------------
Representation #6- Mortgage Status; Waivers and Modifications
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
The security interest created by the related
mortgage and any separate security
instrument and the assignment of leases are
for the benefit of the holder of the
Mortgage Loan included in the trust and the
holders of the other mortgage loan, not
included in the trust.
The related Loan Combination Intercreditor
Agreement had not been completed by March 6,
2006.
--------------------------------------------------------------------------------
Representation #7-Condition of Property; Condemnation
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The mortgaged property is subject to the
acquisition of temporary and permanent
easements from the Massachusetts Bay
Transportation Authority for the
construction, maintenance and operation of a
new headhouse which is part of the Blue Line
Modernization State Street Rehabilitation.
There is a Memorandum of Understanding with
respect to these matters.
--------------------------------------------------------------------------------
Representation #8-Title Insurance
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
Only the right title and interest of the
Seller in the mortgage loan identified on
the Mortgage Loan Schedule is being conveyed
to the Purchaser.
--------------------------------------------------------------------------------
Representation #14-Insurance
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The loan documents provide that the required
coverage shall be issued by one or more
primary insurers having a claims-paying
ability of "A" or better (excluding
earthquake and terrorism insurance) or its
equivalent by each of the rating agencies,
or a syndicate of insurers through which at
least 75% of the coverage by primary
insurers (if there are four (4) or fewer
members of the syndicate) or at least 60% of
the coverage by primary insurers (if there
are five (5) or more members of the
syndicate) is with carriers having
claims-paying ability ratings of "A" or
better (provided that the first layer of
coverage shall be issued by an insurer
having a claims-paying ability of "A" or
better and all such carriers shall have
claims-paying ability ratings of not less
than "BBB-", "Baa3" or the equivalent by
each of the rating agencies), or, subject to
the mortgagor's prior receipt of a rating
confirmation (i.e., confirmation in writing
from each applicable rating agency that no
downgrade, qualification or withdrawal of
any rating shall occur), a
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
claims-paying ability less that the
foregoing; and notwithstanding the
foregoing, Seller has approved the layer of
insurance provided by Real State Insurance
Corporation and its ratings on the closing
date of the loan.
--------------------------------------------------------------------------------
Representation #18-Leasehold Estate
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The ground lease provides that the lender
may obtain a new lease for the remainder of
the term of the ground lease if the lender
succeeds to the related borrower's rights or
if the related borrower's rights have been
extinguished; however the ground lease does
not explicitly provide that rejection or
disaffirmance of the ground lease in
bankruptcy court or under similar laws will
entitle the lender to obtain a new lease.
--------------------------------------------------------------------------------
Representation #23-Other Mortgage Liens
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
--------------------------------------------------------------------------------
Representation #36-Whole Loan
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are secured by the same mortgage instrument
and are cross-defaulted.
--------------------------------------------------------------------------------
Representation #39-Security Interests
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in
the trust is, together with another mortgage
loan also included in the trust with which
it is pari passu in right of payment, a
senior loan in a multiple loan structure
comprised of multiple mortgage loans, all of
which (whether or not included in the trust)
are
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
secured by the same mortgage instrument and
are cross-defaulted.
The security interests created by the
related UCC financing statement are for the
benefit of the holder of the Mortgage Loan
that will be included in the trust and the
holders of the mortgage loans that will not
be included in the trust.
--------------------------------------------------------------------------------
Representation #43-Recourse
--------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The environmental indemnity was only
executed by the mortgagor and it does not
cover waste.
--------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN
WERE WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
None.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE STREET ADDRESS CITY COUNTY STATE ZIP CODE
------ ------------- ---------- ---- -------------- ---- ------ ----- --------
3 00 Xxxxx Xxxxxx Eurohypo Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
CUT-OFF DATE ORIGINAL IO MONTHLY IO ANNUAL MONTHLY P&I DEBT ANNUAL P&I DEBT
LOAN # BALANCE ($) BALANCE ($) DEBT SERVICE ($) DEBT SERVICE ($) SERVICE ($) SERVICE ($)
------ ------------ ------------ ---------------- ----------------- ----------- -----------
3 65,000,000 65,000,000 604,548.14 7,254,577.78
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
NET
INTEREST PRIMARY MASTER TRUSTEE AND SUB SERVICING ADMIN. MORTGAGE
LOAN # RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE %
------ ------ ------------- ------------- ---------------- -------- ----- ------
3 5.5040 0.0100 0.0100 0.0010 0.021 5.4830
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
MATURITY/ AMORT
LOAN # ACCRUAL TYPE TERM REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN
------ ------------ ---- --------- -------- ---- ---------- ---------- --------
3 Actual/360 60 60 3/1/2011 0 0 Fee/Leasehold No
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
PARTIAL
ARD ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF LOCKBOX IN HOLDBACK
LOAN # STEP UP INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT PLACE AMOUNT
------ ------- --------- --------- -------------- ------- ------ ----- ------
3 No No No No No Yes
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT MONTHLY
ENGINEERING CAPEX ENVIR. TI/LC RE TAX INS. OTHER CAPEX
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ----------- ----------- ------------ ----------- ----------- ----------- ----------- -----------
3
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
EUROHYPO
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX TI/LC TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------ --------------- ----------- --------------- ----------- ----------- ----------- ------
3 0
