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MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of November 1, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................3
2. CONVEYANCE OF MORTGAGE LOANS.............................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER...16
6. CLOSING.................................................................20
7. CLOSING DOCUMENTS.......................................................21
8. COSTS...................................................................24
9. NOTICES.................................................................24
10. SEVERABILITY OF PROVISIONS..............................................24
11. FURTHER ASSURANCES......................................................24
12. SURVIVAL................................................................25
13. GOVERNING LAW...........................................................25
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................25
15. MISCELLANEOUS...........................................................25
16. ENTIRE AGREEMENT........................................................25
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................18
Agreement......................................................................2
Certificate Purchase Agreement.................................................2
Certificates...................................................................2
Closing Date...................................................................3
Collateral Information........................................................11
Crossed Mortgage Loans........................................................17
Defective Mortgage Loan.......................................................17
Final Judicial Determination..................................................20
Indemnification Agreement.....................................................14
Initial Purchaser..............................................................2
Master Servicer................................................................2
Material Breach...............................................................16
Material Document Defect......................................................16
Memorandum.....................................................................2
MERS...........................................................................5
Mortgage File..................................................................4
Mortgage Loan Schedule.........................................................3
Mortgage Loans.................................................................2
Officer's Certificate..........................................................8
Other Mortgage Loans...........................................................2
Pooling and Servicing Agreement................................................2
Private Certificates...........................................................2
Prospectus Supplement..........................................................2
Public Certificates............................................................2
Purchaser......................................................................2
Repurchased Loan..............................................................18
Seller.........................................................................2
Servicing File.................................................................9
Special Servicer...............................................................2
Trust..........................................................................2
Trustee........................................................................2
Underwriters...................................................................2
Underwriting Agreement.........................................................2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of November 1,
2006, between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller") and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of November 1, 2006, between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, LNR Partners, Inc., as special
servicer ("Special Servicer"), LaSalle Bank National Association, as trustee and
custodian ("Trustee") and Xxxxx Fargo Bank, National Association, as paying
agent, certificate registrar and authenticating agent. In exchange for the
Mortgage Loans, the Trust will issue to the Depositor pass-through certificates
to be known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ10 (the "Certificates"). The Certificates will be
issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement. The term "Master
Servicer" as used herein shall mean Xxxxx Fargo Bank, National Association in
its capacity as a master servicer under the Pooling and Servicing Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-4FL, Class
A-MFL, Class A-J, Class B, Class C and Class D Certificates (the "Public
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (the "Underwriters"), pursuant to an Underwriting Agreement,
between Purchaser and the Underwriters, dated November 1, 2006 (the
"Underwriting Agreement"), and the Class X-1, Class X-2, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q, Class R-I, Class R-II and Class R-III Certificates (the "Private
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated
(the "Initial Purchaser") pursuant to a Certificate Purchase Agreement, between
Purchaser and the Initial Purchaser, dated November 1, 2006 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by
a Prospectus Supplement dated November 1, 2006 (together with the Prospectus,
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
November 1, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is November 1, 2006.
The Mortgage Loans will have an aggregate principal balance 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 received, of $1,491,010,944. The sale of the
Mortgage Loans shall take place on November 1, 2006 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by Purchaser for the Mortgage Loans shall equal the amount set
forth as such purchase price on Exhibit 3 hereto. The purchase price shall be
paid to Seller by wire transfer in immediately available funds on the Closing
Date.
1.2 On the Closing Date, Purchaser will assign to Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14), and Trustee shall succeed to such right, title and interest in
and to the Mortgage Loans and Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein, all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
November 1, 2006, will be executed by Seller and Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date.
The Mortgage Loan Schedule, as it may be amended from time to time on or prior
to the Closing Date, shall conform to the requirements of this Agreement and the
Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 5 in favor of Trustee,
Master Servicer and Special Servicer to empower Trustee, Master Servicer and, in
the event of the failure or incapacity of Trustee and Master Servicer, Special
Servicer, to submit for recording, at the expense of Seller, any Mortgage Loan
documents required to be recorded as described in the Pooling and Servicing
Agreement and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage Files (so long as original
counterparts have previously been delivered to Trustee). Seller agrees to
reasonably cooperate with Trustee, Master Servicer and Special Servicer in
connection with any additional powers of attorney or revisions thereto that are
requested by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used with respect to any Mortgage
Loan by or under authorization by any party hereto except to the extent that the
absence of a document described in the second preceding sentence with respect to
such Mortgage Loan remains
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unremedied as of the earlier of (i) the date that is 180 days following the
delivery of notice of such absence to Seller, but in no event earlier than 18
months from the Closing Date, and (ii) the date (if any) on which such Mortgage
Loan becomes a Specially Serviced Mortgage Loan. Custodian shall submit such
documents for recording, at Seller's expense, after the periods set forth above,
provided, however, Custodian shall not submit such assignments for recording if
Seller produces evidence that it has sent any such assignment for recording and
certifies that Seller is awaiting its return from the applicable recording
office. In addition, not later than the 30th day following the Closing Date,
Seller shall deliver to or on behalf of Trustee each of the remaining documents
or instruments specified in Section 2.2 hereof (with such exceptions and
additional time periods as are permitted by this Section 2) with respect to each
Mortgage Loan (each, a "Mortgage File"). (Seller acknowledges that the term
"without recourse" does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by or on behalf of Trustee in escrow on behalf of Seller at
all times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-HQ10, without recourse, representation or warranty" or if the
original Mortgage Note is not included therein, then a lost note affidavit, with
a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 90th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension
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certified by Seller together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of Seller stating that such
original modification, consolidation or extension agreement has been dispatched
or sent to the appropriate public recording official for recordation or (ii) in
the case of an original modification, consolidation or extension agreement that
has been lost after recordation, a certification by the appropriate county
recording office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-HQ10," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause Trustee to be
shown as the owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 90th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment
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of such Assignment of Leases, in recordable form, signed by the holder of record
in favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-HQ10," which assignment may be effected in the related Assignment of
Mortgage, provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of Trustee
will be required to be recorded or delivered and instead, Seller shall take all
actions as are necessary to cause Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS and shall
deliver to Special Servicer evidence confirming that Trustee is shown as the
owner on the record of MERS;
2.2.7 The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report with an original Title Insurance Policy to follow
within 180 days of the Closing Date;
2.2.9 (A) Copies of UCC financing statements (together with all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements assigning such
UCC financing statements to Trustee executed and delivered in connection with
the Mortgage Loan, provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no such financing statements will be required to
be recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related B Note), if any, related to any Mortgage
Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to Trustee on
behalf of the Trust with a copy to be held by Primary Servicer (or Master
Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement or (B) the original of each letter
of credit, if any, constituting additional
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collateral for such Mortgage Loan (other than letters of credit representing
tenant security deposits which have been collaterally assigned to the lender),
which shall be held by Primary Servicer (or Master Servicer) on behalf of
Trustee, with a copy to be held by Trustee, and applied, drawn, reduced or
released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that Seller has agreed (a) that the proceeds of
such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to Trustee) or a reissued letter of credit and (c) to
indemnify the Trust for any liabilities, charges, costs, fees or other expenses
accruing from the failure of Seller to assign the letter of credit hereunder
including the right and power to draw on the letter of credit). In the case of
clause (B) above, any letter of credit held by Primary Servicer (or Master
Servicer) acknowledges that any letter of credit held by it shall be held in its
capacity as agent of the Trust, and if Primary Servicer (or Master Servicer)
sells its rights to service the applicable Mortgage Loan, Primary Servicer (or
Master Servicer) has agreed to assign the applicable letter of credit to the
Trust or at the direction of Special Servicer to such party as Special Servicer
may instruct, in each case, at the expense of Primary Servicer (or Master
Servicer). Primary Servicer (or Master Servicer) has agreed to indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
2.2.14 Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
2.2.15 The original or a copy of any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
2.2.17 With respect to the Cherry Creek Pari Passu Loan, a copy of the
MSCI 2006-HQ9 Pooling and Servicing Agreement and with respect to the Michigan
Plaza Pari Passu Loan, a copy of the MSCI 2006-IQ11 Pooling and Servicing
Agreement.
With respect to the Cherry Creek Pari Passu Loan and the Michigan Plaza Pari
Passu Loan, the preceding document delivery requirements will be met by the
delivery by the Depositor of copies of the documents specified above (other than
the Mortgage Notes and all intervening endorsements) evidencing the Cherry Creek
Pari Passu Loan and the Michigan Plaza Pari Passu Loan, as applicable, including
a copy of the related Pari Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to Primary Servicer within 30 days of the Closing Date.
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"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections 2.2.2,
2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon, solely because of a
delay caused by the public recording office where such document or instrument
has been delivered for recordation within such 90 day period, but Seller
delivers a photocopy thereof (certified by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording), to Trustee within such 90 day period, Seller shall then deliver
within 180 days after the Closing Date the recorded document (or within such
longer period after the Closing Date as Trustee may consent to, which consent
shall not be unreasonably withheld so long as Seller is, as certified in writing
to Trustee no less often than monthly, in good faith attempting to obtain from
the appropriate county recorder's office such original or photocopy).
2.5 Trustee, as assignee or transferee of Purchaser, shall be entitled to all
scheduled payments of principal due thereon after the Cut-Off Date, all other
payments of principal collected after the Cut-Off Date (other than scheduled
payments of principal due on or before the Cut-Off Date), and all payments of
interest on the Mortgage Loans allocable to the period commencing on the Cut-Off
Date. All scheduled payments of principal and interest due on or before the
Cut-Off Date and collected after the Cut-Off Date shall belong to Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver, and
Purchaser, Trustee or the agents of either may submit or cause to be submitted
for recordation at the expense of Seller, in the appropriate public office for
real property records, each assignment referred to in clauses 2.2.4, 2.2.6(ii)
and 2.2.9(B) above (with recording information in blank if such information is
not yet available). If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller shall, at
its own expense (except in the case of a document or instrument that is lost by
Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
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2.7 As to each Mortgage Loan secured by a Mortgaged Property with respect to
which the related Mortgagor has entered into a franchise agreement and each
Mortgage Loan secured by a Mortgaged Property with respect to which a letter of
credit is in place, Seller shall provide a notice on or prior to the date that
is 30 days after the Closing Date to the franchisor or the issuing financial
institution, as applicable, of the transfer of such Mortgage Loan to the Trust
pursuant to the Pooling and Servicing Agreement, and inform such parties that
any notices to the Mortgagor's lender pursuant to such franchise agreement or
letter of credit should thereafter be forwarded to Master Servicer and, with
respect to each franchise agreement, provide a franchise comfort letter to the
franchisor on or prior to the date that is 30 days after the Closing Date. After
the Closing Date, with respect to any letter of credit that has not yet been
assigned to the Trust, upon the written request of Master Servicer or the
applicable Primary Servicer, Seller will draw on such letter of credit as
directed by Master Servicer or such Primary Servicer in such notice to the
extent Seller has the right to do so.
2.8 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the servicing of any Mortgage Loans and that are
not required to be a part of the Mortgage File and are reasonably necessary for
the ongoing administration and/or servicing of the applicable Mortgage Loan (the
"Servicing File") shall be delivered to Trustee shall be shipped by Seller to or
at the direction of Master Servicer, on behalf of Purchaser, on or prior to the
75th day after the Closing Date, in accordance with Section 3.1 of the Primary
Servicing Agreement, if applicable.
2.9 The documents required to be delivered to Master Servicer (or in the
alternative, Primary Servicer) shall include, to the extent required to be (and
actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses or data. Delivery of
any of the foregoing documents to Primary Servicer shall be deemed a delivery to
Master Servicer and satisfy Seller's obligations under this subparagraph. Each
of the foregoing items may be delivered by Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to Master Servicer.
2.10 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in Purchaser and its
assigns, and the ownership of all records and documents constituting the
Servicing File with respect to the related Mortgage Loan prepared by or that
come into the possession of Seller shall immediately vest in Purchaser and its
assigns, and shall be delivered promptly by Seller to or on behalf of either
Trustee or Master Servicer as set forth herein, subject to the requirements of
the Primary Servicing Agreement. Seller's and
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Purchaser's records shall reflect the transfer of each Mortgage Loan from Seller
to Purchaser and its assigns as a sale.
2.11 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.11.1 this Agreement shall be deemed to be a security agreement; and
2.11.2 the conveyance provided for in this Section 2 shall be deemed to
be a grant by Seller to Purchaser of a security interest in all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment property
consisting of, arising from or relating to any of the following property:
the Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.12 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
2.13 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or
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acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents of, or Persons holding for, Purchaser or its designee, as
applicable, for the purpose of perfecting such security interest under
applicable law.
2.14 Seller shall, to the extent consistent with this Agreement and upon
request by or on behalf of Purchaser, take such reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the property described above, 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 the Agreement. In such case,
Seller hereby authorizes Master Servicer to file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
2.15 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note (endorsed as described in clause 2.2.1) required to be
delivered to or on behalf of Trustee or Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or Trustee to cause Seller to cure any Material
Document Defect or Material Breach (each as defined below), or to repurchase or
replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency to examine and audit all books, records and
files pertaining to the Mortgage Loans, Seller's underwriting procedures and
Seller's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place at
one or more offices of Seller during normal business hours and shall not be
conducted in a manner that is disruptive to Seller's normal business operations
upon reasonable prior advance notice. In the
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course of such examinations and audits, Seller will make available to such
representatives of any of Purchaser, each Underwriter, each Initial Purchaser,
Trustee, Special Servicer and each Rating Agency reasonably adequate facilities,
as well as the assistance of a sufficient number of knowledgeable and
responsible individuals who are familiar with the Mortgage Loans and the terms
of this Agreement, and Seller shall cooperate fully with any such examination
and audit in all material respects. On or prior to the Closing Date, Seller
shall provide Purchaser with all material information regarding Seller's
financial condition and access to knowledgeable financial or accounting officers
for the purpose of answering questions with respect to Seller's financial
condition, financial statements as provided to Purchaser or other developments
affecting Seller's ability to consummate the transactions contemplated hereby or
otherwise affecting Seller in any material respect. Within 45 days after the
Closing Date, Seller shall provide Master Servicer or Primary Servicer, if
applicable, with any additional information identified by Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of Purchaser and its assigns with respect to each Mortgage Loan
(subject to the last paragraph of
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this Section 4.1) as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached thereto, and hereby further
represents and warrants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a corporation
in good standing under the laws of the State of New York. Seller has the
requisite power and authority and legal right to own the Mortgage Loans and to
transfer and convey the Mortgage Loans to Purchaser and has the requisite power
and authority to execute and deliver, engage in the transactions contemplated
by, and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 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 of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the
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transactions contemplated hereby by Seller or materially and adversely affect
its ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated November 1, 2006, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (when read together with the Final Prospectus Supplement,
in the case of Public Certificates, or when read together with the Memorandum,
in the case of the Private Certificates). Notwithstanding anything contained
herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the
benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, provided that any representations
and warranties made as of a specified date shall be true and correct in all
material respects as of such specified date.
4.1.8 Seller has complied with the disclosure requirements of Regulation
AB that arise from its role as "seller" and "sponsor" in connection with the
issuance of the Certificates.
4.1.9 For so long as the Trust is subject to the reporting requirements
of the Exchange Act, Seller shall provide Purchaser (or with respect to any
Serviced Companion Mortgage Loan that is deposited into an Other Securitization,
the depositor in such Other Securitization) and the Paying Agent with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next to Seller's name on Schedule XV and Schedule XVI of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
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Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 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 of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
15
condition of Purchaser that would materially and adversely affect the ability of
Purchaser to perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent
or other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of
Trustee on behalf of the holders of the Certificates, whether directly or by way
of Purchaser's assignment of its rights hereunder to Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to Trustee pursuant to Section 2 is not delivered as and when required
(and including the expiration of any grace or cure period), is not properly
executed or is defective on its face, or if there is a breach of any of the
representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph 42 of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, Master Servicer shall, and Special Servicer may, request that Seller,
not later than 90 days from Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within
16
such 90 day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage"(as defined
in the Code) but Seller is diligently attempting to effect such correction or
cure, as certified by Seller in an Officer's Certificate delivered to Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90 day period, then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to Seller by Trustee pursuant
to Section 2.2 of the Pooling and Servicing Agreement not less than 90 days
prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by Seller of any Material Document
Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured in all material respects
within the above cure periods, Seller shall, on or before the termination of
such cure periods, either (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from Purchaser or its assignee at the Purchase Price as defined in
the Pooling and Servicing Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at its option replace, without recourse, any Mortgage Loan or REO
Mortgage Loan to which such defect relates with a Qualifying Substitute Mortgage
Loan. If such Material Document Defect or Material Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence or the previous paragraph, repurchase
or substitution must occur within 90 days from the date Seller was notified of
the breach or defect. Seller agrees that any substitution shall be completed in
accordance with the terms and conditions of the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to repurchase or replace each such Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case of such breach
or document defect, (A) Seller provides a Nondisqualification Opinion to Trustee
at the expense of Seller if Trustee acting at the direction of the Controlling
Class determines that it would be usual and customary in accordance with
industry practice to obtain a Nondisqualification Opinion and (B) both of the
following conditions would be satisfied if Seller were to repurchase or replace
only those Mortgage Loans as to which a Material Breach or Material Document
Defect had occurred without regard to this
17
paragraph (the "Affected Loan(s)"): (i) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not less than
the greater of (A) the debt service coverage ratio for all such Crossed Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (B) 1.25x, and (ii) the
loan-to-value ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (A) the current loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(B) 75%. The determination of Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the absence
of manifest error. Master Servicer will be entitled to cause to be delivered, or
direct Seller to (in which case Seller shall) cause to be delivered to Master
Servicer: (A) an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of Seller if the scope and cost of
the Appraisal is approved by Seller (such approval not to be unreasonably
withheld) and (B) an opinion of counsel that not requiring the repurchase of
each such other Mortgage Loan will not result in an Adverse REMIC Event.
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while Trustee (as assignee of
Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
5.6 Upon occurrence (and after any applicable cure or grace period), any of
the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity that appears to be regular on its face; (b) the
absence from the Mortgage File of the original signed Mortgage that appears to
be regular on its face,
18
unless there is included in the Mortgage File a certified copy of the Mortgage
by the local authority with which the Mortgage was recorded; or (c) the absence
from the Mortgage File of the item specified in paragraph 2.2.8. If any of the
foregoing Material Document Defects is discovered by the Custodian (or Trustee
if there is no Custodian), Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, Master Servicer) will take the steps described
elsewhere in this Section, including the giving of notices to the Rating
Agencies and the parties hereto and making demand upon Seller for the cure of
the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a
correction or cure of such Material Document Defect or Material Breach, (ii) to
repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than Seller shall
be without (i) recourse of any kind (either express or implied) by such Person
against Seller and (ii) representation or warranty of any kind (either express
or implied) by Seller to or for the benefit of such Person.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or
REO Properties, as applicable, in accordance with Section 9.36 of the Pooling
and Servicing Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. After a final liquidation of the Mortgage Loan
or REO Mortgage Loan, if a court of competent jurisdiction issues a final order
after the expiration of any applicable appeal period that Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan (a "Final
Judicial Determination") or Seller otherwise accepts liability, then, but in no
event later than the Termination of the Trust pursuant to Section 9.30 of the
Pooling and Servicing Agreement, Seller will be obligated to pay to the Trust
the difference between any Liquidation Proceeds received upon such liquidation
in accordance with the Pooling and Servicing Agreement (including those arising
from any sale to Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, Special
19
Servicer shall not receive a Liquidation Fee from Seller (but may collect such
Liquidation Fee from the related Liquidation Proceeds as otherwise provided
herein); provided, however, that in the event Seller is obligated to repurchase
the Mortgage Loan or REO Mortgaged Property after a final liquidation of such
Mortgage Loan or REO Property pursuant to the immediately preceding paragraph,
an amount equal to any Liquidation Fee (calculated on the basis of Liquidation
Proceeds) payable to Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged Property.
Except as expressly set forth above, no Liquidation Fee shall be payable in
connection with a repurchase of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 of Exhibit 2 hereto
because the underlying loan documents do not provide for the payment by the
Mortgagor of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan, and the related Mortgagor's payments made for the
reasonable costs and expenses associated with the defeasance or assumption of a
Mortgage Loan are insufficient and cause the Trust to incur an Additional Trust
Expense in an amount equal to such reasonable costs and expenses not paid by
such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within
90 days of the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. The parties hereto acknowledge that such
reimbursement shall be Seller's sole obligation with respect to the breach
discussed in the previous sentence.
5.13 The Pooling and Servicing Agreement shall provide that Trustee (or Master
Servicer or Special Servicer on its behalf) shall give written notice promptly
(but in any event within three Business Days) to Seller of its discovery of any
Material Document Defect or Material Breach and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan
(as defined in the Pooling and Servicing Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by Trustee of the Purchase Price
therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage
Loan documents with respect to such Mortgage Loan, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to Trustee
shall be endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan, in each
case without recourse, including any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policies with respect thereto.
6. CLOSING.
20
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date, provided that any representations and warranties
made as of a specified date shall be true and correct as of such specified date
(to the extent of the standard, if any, set forth in each representation and
warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and 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.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement
and none of the Initial Purchasers shall have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchasers
shall have suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage
Loans pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
21
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller
and dated the Closing Date, and upon which Purchaser and its successors and
assigns may rely, to the effect that: (i) the representations and warranties of
Seller in this Agreement are true and correct in all material respects on and as
of the Closing Date with the same force and effect as if made on the Closing
Date, provided that any representations and warranties made as of a specified
date shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws or other organizational documents.
7.4 A certificate of existence for Seller from the Secretary of State of New
York dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under New York law and has full
corporate power and authority to enter into and perform its obligations under
this Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any federal court
or governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement
by Seller, nor the consummation by Seller of any of the transactions
contemplated by the terms of this Agreement (A) conflicts with or results in a
breach or violation of, or constitutes a default under, the organizational
documents of Seller, (B) to the knowledge of such counsel, constitutes a default
under any term or provision of any material agreement, contract, instrument or
indenture, to which Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) conflicts with or results in a breach or violation of any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having
22
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of Seller, or in
any material impairment of the right or ability of Seller to carry on its
business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which Seller is a party, or
threatened against Seller, (a) asserting the invalidity of this Agreement or (b)
which materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 A "10b-5" opinion of counsel addressed to Purchaser and the Underwriters,
in form reasonably acceptable to Purchaser and the Underwriters, as to the
disclosure provided by Seller to Purchaser in connection with the Certificates.
7.8 An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as such term is defined in Regulation AB)
in connection with the Certificates. Such other opinions of counsel as any
Rating Agency may request in connection with the sale of the Mortgage Loans by
Seller to Purchaser or Seller's execution and delivery of, or performance under,
this Agreement.
7.9 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
23
7.10 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.11 An officer's certificate of Purchaser, dated as of the Closing Date, with
the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.12 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.13 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
9. NOTICES. All communications provided for or permitted hereunder shall be
in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee, or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend (or such other
address as may hereafter be furnished in writing by Purchaser), or if (ii) to
Seller, addressed to Seller at Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx (or to such other
address as Seller may designate in writing).
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty
or covenant of this Agreement that is prohibited or that 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
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
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
24
12. SURVIVAL. Each party hereto agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE 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.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure
to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the
25
Letter of Understanding (solely with respect to those portions of this Agreement
that are not assigned to Trustee), the Indemnification Agreement and the Pooling
and Servicing Agreement), and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
26
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
-----------------
Title: Vice President
--------------
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name:Xxxxxxx X. Xxxxxx
-----------------
Title:Vice President
--------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
-------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN CUT-OFF DATE
LOAN NO. GROUP PROPERTY NAME(2) BALANCE NOTE DATE
-------------------------------------------------------------------------------------------------------------------
1 1 Waterside Shops $120,000,000 09/28/2006
2 1 PPG Portfolio - Longmont (I) $25,300,000 10/06/2006
0 0 XXX Xxxxxxxxx - Xxxxxxx (X) $20,725,000 10/06/2006
4 1 PPG Portfolio - Panorama (I) $16,375,000 10/06/2006
5 1 PPG Portfolio - Centennial (I) $12,640,000 10/06/2006
0 0 XXX Xxxxxxxxx - Xxxxxxx (X) $10,880,000 10/06/2006
7 1 PPG Portfolio - South Bend Allied (I) $9,920,000 10/06/2006
0 0 XXX Xxxxxxxxx - Xxxxx Xxxx Xxxxx (X) $8,160,000 10/06/2006
9 1 Michigan Plaza $72,000,000 03/14/2006
10 1 AZ Office/Retail Portfolio - La Mirada Shopping Center (A) $32,200,000 09/18/2006
11 1 AZ Office/Retail Portfolio - Seville Retail (A) $25,000,000 09/18/2006
12 1 AZ Office/Retail Portfolio - Seville Office (A) $14,800,000 09/18/2006
13 1 The Shops at Briargate $71,395,805 06/29/2006
14 1 000 Xxxx Xxxxxx $70,000,000 10/06/2006
15 1 One Bethesda Center $53,000,000 09/29/2006
16 1 Sony Pictures Plaza $52,875,930 08/21/2006
17 1 Kings Crossing Shopping Centre $38,967,505 09/27/2006
00 0 Xxxx Xxx Xxxxxxxxx - Xxxx Xxxxx (X) $13,555,000 08/22/2006
00 0 Xxxx Xxx Xxxxxxxxx - Xxxxxx, Xxxxxxxxxxxx (X) $4,370,000 08/22/2006
00 0 Xxxx Xxx Xxxxxxxxx - Xxxxxxx, Xxxxxxxxx (X) $3,310,000 08/22/2006
00 0 Xxxx Xxx Xxxxxxxxx - Xxxxxx, XxXxxxxxxxx (X) $2,770,000 08/22/2006
00 0 Xxxx Xxx Xxxxxxxxx - Xxxxx Xxxxx (X) $2,740,000 08/22/2006
23 1 Fort Roc Portfolio - Rite Aid, Watertown (B) $2,450,000 08/22/2006
24 1 Fort Roc Portfolio - Rite Aid, Wilmington (B) $2,405,000 08/22/2006
25 1 Cherry Creek Shopping Center $30,000,000 05/11/2006
26 1 000 Xxxxx Xxxxxx $24,000,000 08/24/2006
27 1 Hilton Garden Inn X'Xxxx $22,305,104 01/27/2006
28 1 Southport Town Center $20,000,000 05/15/2006
29 1 Covenant Transport Headquarters $18,841,120 06/01/2006
00 0 Xxxxxxxxx Xxxxx Tower $18,600,000 09/29/2006
31 1 Courtyard by Marriott - Charleston $18,501,735 06/29/2006
32 1 Village at Sandhill Forum Center $16,969,588 08/31/2006
33 1 Revere Marketplace $16,600,000 05/05/2006
34 1 Burbank Shopping Center $14,250,000 06/29/2006
35 1 Centex Office Building $13,451,485 06/23/2006
36 1 Home Depot - Plymouth $13,200,000 06/22/2006
37 2 The Texan Apartments $12,900,000 09/06/2005
38 1 Xxxxxxxx Grove $12,475,618 08/29/2006
39 1 Civic Center Tower $12,000,000 06/29/2006
40 1 West Haven Shopping Center $12,000,000 09/25/2006
41 1 Kings Super Market - Morristown $11,700,000 07/27/2006
42 2 Copperwood Apartments $11,500,000 09/19/2006
43 0 Xxxxx Xxxxxx Xxxxxxx $11,500,000 06/20/2006
44 1 000 Xxxxxxxxx Xxxxx Offices $11,500,000 08/01/2006
45 0 Xxxxx Xxxx Xxxxxxxxxx Xxxxxx - Xxxxx Xxxxx $11,250,044 07/21/2006
1-1
46 1 Hilton Garden Inn Scottsdale $11,250,000 05/16/2006
47 0 Xxxxxx Xx Xxxxxx & Xxxxxx Xxxxxxxx $11,000,000 06/29/2006
48 1 Willow Creek Town Center $10,950,000 05/23/2006
49 1 Campbells Run Business Center $10,560,000 09/19/2006
50 2 Campus Club Apartments $10,500,000 06/28/2006
51 0 Xxxx Xxxx Xxxxx $9,967,323 06/16/2006
52 1 Pilot Medical Office $9,400,000 07/11/2006
53 2 Castle Ridge Apartments $9,300,000 08/03/2006
54 1 Phoenix Plaza III $9,285,000 01/25/2006
55 1 Dutch Hollow MHC $9,000,000 08/15/2006
56 1 Xxxxxx Furniture & Interiors - Naples $8,502,717 02/14/2006
57 1 Palisades Highlands $8,475,000 08/17/2006
58 1 A&P Warehouse $8,448,318 06/30/2005
59 1 Croft Commons $8,266,922 06/01/2006
60 2 Chesapeake Pointe $8,200,000 08/31/2006
61 0 Xxxxxxx Xxx - Xxxx Xxxxxxxxxxx $8,144,588 07/21/2006
62 1 Gloucester Portfolio - Retail (II) $5,650,000 08/01/2006
63 1 Gloucester Portfolio - Office (II) $2,400,000 08/01/2006
64 1 Xxxxx Medical Plaza $8,000,000 08/31/2006
65 1 Xxxxxxxxxx Suites Hotel $7,637,307 08/17/2006
66 1 Holiday Inn Express Sea World $7,600,000 10/12/2006
67 1 Bells Shopping Center $7,600,000 08/11/2006
00 0 Xxxxxxx Xxxxx-Xxxxxxxxx Xxxxxx $7,580,766 07/19/2006
69 1 Xxxxx Corporate Park $7,500,000 04/12/2006
70 2 Purdue Student Housing $7,030,000 07/31/2006
71 1 Home Decor Facility $7,000,000 06/23/2006
72 1 RLJ Hotel Portfolio Xxxxxxx $6,992,000 06/14/2006
73 1 Hampton Inn & Suites - Destin $6,982,203 08/31/2006
74 2 Laurel Canyon Apartments Phase II $6,600,000 08/18/2006
75 1 Kings Super Market - Cresskill $6,600,000 06/22/2006
76 1 Lake Clearwater Office Building $6,600,000 08/04/2006
77 1 Embassy Office Building $6,535,000 06/30/2006
78 0 Xxxx Xxxxxx Trading Center $6,471,526 05/05/2006
79 1 Willow Station Shopping Center $6,375,000 05/23/2006
80 1 4 Home Depot Drive $6,240,000 08/15/2006
81 2 Walnut Towers $6,150,000 09/19/2006
82 0 Xxxxxxxx Xxxxxx Shopping Center $6,089,307 08/04/2006
83 1 River Run Office Center $6,000,000 08/14/2006
84 1 Calusa Centre $5,978,848 06/28/2006
85 1 Alrue Import Building $5,955,329 02/23/2006
86 1 Lincoln Park Shopping Center $5,641,645 12/21/2005
87 1 Country Club Center $5,375,958 05/18/2006
88 1 CVS & Shops - Roswell $5,095,559 09/21/2006
89 0 Xxxxx Xxxxxx Xxxxxx $5,062,000 07/31/2006
90 1 Coronado Trails Plaza $5,030,000 09/13/2006
91 1 0 Xxxxxxxx Xxxxx $4,991,354 08/15/2006
92 1 00000 Xxxxxxxx Xxxxxxxxx $4,925,000 06/23/2006
93 1 Kings Super Market - Montclair $4,800,000 06/22/2006
94 0 Xxxxxxx Xxxxxxx $4,650,000 03/23/2006
95 1 Clinton Town Center $4,350,000 07/25/2006
1-2
96 1 Mission Village $4,340,000 09/21/2006
97 1 Northern Lights Medical Center $4,300,000 09/28/2006
98 1 Dick's Sporting Goods - Akron $4,300,000 09/13/2006
99 1 Bootheel Plaza $4,246,514 09/28/2006
100 0 Xxxxxxx Xxx - Xxxxxx Xxxxx $4,179,790 06/14/2006
101 1 357 Office Building $4,150,000 06/30/2006
102 1 Colonial Bank Building $4,100,000 07/12/2006
000 0 Xxxxxx Xxxxx $3,920,000 09/07/2006
104 1 Walgreens - Xxxxxxxxx $3,743,292 09/01/2006
105 1 The Shoppes at Rostraver $3,680,000 08/21/2006
106 1 Comfort Inn & Bonanza Steakhouse $3,661,853 07/18/2006
107 2 Yukon Court Apartments $3,500,000 06/29/2006
108 2 Eagle Crest Apartments $3,500,000 06/29/2006
109 2 Eagle Mill Apartments $3,434,922 05/31/2006
110 1 Plaza II Medical Office Building $3,400,000 06/05/2006
111 2 Westgrove Tower $3,393,863 08/03/2006
112 1 CVS - South Portland $3,318,849 08/22/2006
113 0 Xxxxxxxxx Xxxxx $3,200,000 07/31/2006
114 1 Shoppes at Westgate $3,189,176 06/13/2006
115 1 Walgreens - Georgetown $3,071,978 07/14/2006
000 0 Xxxxxxxxx - Xxxxxxx $3,034,562 09/01/2006
117 1 Kings Super Market - Summit $2,925,000 05/30/2006
000 0 Xxxxxxxx Xxxxxxxx Xxxxxx $2,890,310 06/01/2006
119 1 Armored Mini Storage $2,865,417 06/29/2006
120 1 CVS - Clear Lake $2,839,829 07/14/2006
121 1 Bethelview Corners $2,715,737 06/14/2006
122 0 Xxxxxxxx Xxxxx $2,648,000 06/29/2006
123 1 0000 Xxxxx Xxxxxx Xxxx $2,500,000 07/28/2006
124 1 000 Xxxxxxxx Xxx $2,450,000 06/26/2006
125 1 0000 Xxxx Xxxxxx Xxxxxx $2,400,000 06/12/2006
126 1 00000 Xxxx 000xx Xxxxxx $2,094,711 07/28/2006
000 0 Xxxxxx Xxxxx Xxxxxxxx Xxxx $1,900,000 08/03/2006
000 0 Xxxxxx of Shoppes $1,824,000 07/27/2006
129 1 Kings Super Market - Maplewood $1,800,000 05/30/2006
130 1 0000 Xxxxxx Xxxxxxxxx $1,795,448 08/23/2006
131 1 Xxxxx Retail $1,575,090 07/14/2006
TOTALS AND WEIGHTED AVERAGES: $1,491,010,945
-----------------------------------------------------------------------------------------------------------
MORTGAGE LOAN ORIGINAL TERM REMAINING TERM ORIGINAL REMAINING MORTGAGE MONTHLY
LOAN NO. GROUP TO MATURITY TO MATURITY AMORT. TERM AMORT. TERM RATE PAYMENT (P&I)
-----------------------------------------------------------------------------------------------------------
1 1 120 119 IO IO 5.376% NAP
2 1 120 119 360 360 5.830% $148,932
3 1 120 119 360 360 5.830% $122,001
4 1 120 119 360 360 5.830% $96,394
5 1 120 119 360 360 5.830% $74,407
6 1 120 119 360 360 5.830% $64,047
7 1 120 119 360 360 5.830% $58,396
1-3
8 1 120 119 360 360 5.830% $48,035
9 1 60 53 IO IO 6.050% NAP
10 1 120 119 IO IO 5.900% NAP
11 1 120 119 IO IO 5.900% NAP
12 1 120 119 IO IO 5.900% NAP
13 1 120 116 IO IO 6.332% NAP
14 1 120 119 IO IO 5.750% NAP
15 1 120 119 IO IO 5.660% NAP
16 1 120 118 360 358 4.850% $279,677
17 1 120 119 360 359 5.980% $233,323
18 1 120 118 360 360 6.120% $82,318
19 1 120 118 360 360 6.120% $26,538
20 1 120 118 360 360 6.120% $20,101
21 1 120 118 360 360 6.120% $16,822
22 1 120 118 360 360 6.120% $16,640
23 1 120 118 360 360 6.120% $14,879
24 1 120 118 360 360 6.120% $14,605
25 1 120 115 IO IO 5.240% NAP
26 1 120 118 IO IO 6.060% NAP
27 1 126 117 360 351 5.990% $134,754
28 1 120 115 360 360 5.550% $114,186
29 1 120 116 360 356 6.480% $119,212
30 1 120 119 360 360 5.770% $108,781
31 1 120 116 300 296 6.030% $120,181
32 1 120 118 360 358 6.100% $103,019
33 1 120 115 360 360 5.590% $95,192
34 1 120 116 360 360 6.540% $90,445
35 1 120 116 360 356 5.900% $80,073
36 1 120 116 IO IO 6.350% NAP
37 2 120 107 360 360 4.990% $69,171
38 1 120 118 360 358 5.710% $72,629
39 1 120 116 360 360 6.100% $72,719
40 1 120 119 360 360 6.150% $73,107
41 1 120 117 360 360 6.240% $71,963
42 2 180 179 360 360 6.660% $73,902
43 1 120 116 360 360 6.150% $70,061
44 1 120 117 360 360 6.170% $70,210
45 1 120 117 300 297 6.050% $73,119
46 1 128 123 360 360 6.070% $67,957
47 1 120 116 360 360 6.210% $67,443
48 1 120 115 360 360 5.740% $63,832
49 1 120 119 360 360 6.220% $64,814
50 2 120 116 360 360 6.180% $64,173
51 1 120 116 360 356 6.290% $61,832
52 1 120 117 360 360 6.270% $58,000
53 2 120 118 360 360 5.970% $55,579
54 1 120 111 360 360 5.640% $53,538
55 1 120 118 360 360 6.100% $54,540
56 1 120 112 300 292 5.790% $54,311
57 1 60 58 IO IO 6.300% NAP
1-4
58 1 120 104 276 260 5.450% $55,364
59 1 120 115 360 355 6.540% $52,680
60 2 120 118 360 360 6.100% $49,692
61 1 120 117 300 297 6.420% $54,790
62 1 120 117 360 360 6.150% $34,421
63 1 120 117 360 360 6.150% $14,621
64 1 120 118 360 360 6.100% $48,480
65 1 120 118 360 358 6.430% $48,002
66 1 120 120 300 300 6.450% $51,079
67 1 120 118 360 360 6.127% $46,188
68 1 120 117 360 357 6.220% $46,646
69 1 120 114 360 360 5.810% $44,054
70 2 120 117 360 360 6.130% $42,738
71 1 120 116 360 360 6.110% $42,465
72 1 120 116 360 360 6.294% $43,251
73 1 60 58 300 298 6.400% $46,828
74 2 120 118 360 360 6.030% $39,698
75 1 120 116 360 360 6.410% $41,327
76 1 120 118 360 360 6.220% $40,509
77 1 120 116 360 360 6.320% $40,535
78 1 120 115 360 355 6.140% $39,558
79 1 120 115 360 360 5.740% $37,162
80 1 120 118 360 360 6.070% $37,693
81 2 120 119 360 360 6.160% $37,507
82 1 120 118 360 358 6.190% $37,321
83 1 120 118 360 360 6.245% $36,924
84 1 120 116 360 356 5.980% $35,896
85 1 120 112 360 352 5.890% $35,550
86 1 120 110 360 350 5.650% $32,902
87 1 120 115 360 355 6.070% $32,619
88 1 120 119 360 359 5.810% $29,957
89 1 120 117 360 360 6.020% $30,414
90 1 120 119 360 360 5.720% $29,258
91 1 144 142 360 358 6.250% $30,786
92 1 120 116 360 360 6.160% $30,036
93 1 120 116 360 360 6.410% $30,056
94 2 120 113 360 360 5.725% $27,062
95 1 120 117 360 360 6.150% $26,501
96 1 120 119 360 360 6.200% $26,581
97 1 120 119 360 360 6.390% $26,869
98 1 120 119 360 360 6.220% $26,392
99 1 120 119 360 359 6.040% $25,590
100 1 120 116 300 296 6.530% $28,437
101 1 60 56 360 360 6.650% $26,642
102 1 120 117 360 360 6.130% $24,925
103 1 120 119 360 360 6.160% $23,907
104 1 120 118 360 358 6.100% $22,725
105 1 120 118 360 360 6.080% $22,253
106 1 120 117 300 297 6.630% $25,113
107 2 120 116 360 360 6.280% $21,618
1-5
108 2 120 116 360 360 6.280% $21,618
109 2 120 115 360 355 6.150% $21,018
110 1 120 116 360 360 6.270% $20,979
111 2 120 118 360 358 6.060% $20,516
112 1 120 118 360 358 5.950% $19,828
113 1 120 117 IO IO 6.180% NAP
114 1 120 116 360 356 6.150% $19,495
115 1 120 117 360 357 6.100% $18,665
116 1 120 118 360 358 6.100% $18,422
117 1 120 115 360 360 6.290% $18,086
118 1 120 116 360 356 6.200% $17,762
119 1 120 116 360 356 6.210% $17,627
120 1 120 117 360 357 6.240% $17,511
121 1 120 116 360 356 6.130% $16,566
122 1 120 116 360 360 6.110% $16,064
123 1 120 117 360 360 6.220% $15,344
124 1 120 116 360 360 6.150% $14,926
125 1 120 116 360 360 6.160% $14,637
126 1 120 117 360 357 6.240% $12,916
127 1 120 118 360 360 6.010% $11,404
128 1 120 117 360 360 6.290% $11,278
129 1 120 115 360 360 6.290% $11,130
130 1 120 118 300 298 6.430% $12,075
131 1 120 117 360 357 6.310% $9,784
117 114 355 353 5.918%
PREPAYMENT CODE(24)
----------------------------------------------------------------------------------------------------------
DEF/
MORTGAGE LOAN SEASO YM1. YM3.0 YM
LOAN NO. GROUP NING LO DEF 00 0 2.00 YM1.00 YM 1.00 OPEN
----------------------------------------------------------------------------------------------------------
1 1 1 25 88 7
2 1 1 25 91 4
3 1 1 25 91 4
4 1 1 25 91 4
5 1 1 25 91 4
6 1 1 25 91 4
7 1 1 25 91 4
8 1 1 25 91 4
9 1 7 31 22 7
10 1 1 25 88 7
11 1 1 25 88 7
12 1 1 25 88 7
13 1 4 28 88 4
14 1 1 25 91 4
15 1 1 25 88 7
16 1 2 26 91 3
17 1 1 23 93 4
18 1 2 26 90 4
19 1 2 26 90 4
1-6
20 1 2 26 90 4
21 1 2 26 90 4
22 1 2 26 90 4
23 1 2 26 90 4
24 1 2 26 90 4
25 1 5 29 87 4
26 1 2 26 90 4
27 1 9 33 89 4
28 1 5 29 87 4
29 1 4 28 88 4
30 1 1 25 91 4
31 1 4 28 88 4
32 1 2 26 87 7
33 1 5 29 87 4
34 1 4 28 88 4
35 1 4 28 89 3
36 1 4 28 88 4
37 2 13 0 116 4
38 1 2 26 90 4
39 1 4 28 88 4
40 1 1 25 92 3
41 1 3 27 89 4
42 2 1 25 151 4
43 1 4 28 88 4
44 1 3 27 89 4
45 1 3 27 89 4
46 1 5 29 95 4
47 1 4 28 88 4
48 1 5 29 87 4
49 1 1 25 91 4
50 2 4 28 88 4
51 1 4 28 88 4
52 1 3 27 89 4
53 2 2 26 90 4
54 1 9 33 83 4
55 1 2 26 90 4
56 1 8 32 84 4
57 1 2 5 30 25
58 1 16 40 76 4
59 1 5 29 87 4
60 2 2 26 90 4
61 1 3 27 89 4
62 1 3 27 89 4
63 1 3 27 89 4
64 1 2 26 90 4
65 1 2 26 87 7
66 1 0 24 89 7
67 1 2 26 90 4
68 1 3 27 89 4
69 1 6 30 86 4
1-7
70 2 3 27 89 4
71 1 4 28 79 13
72 1 4 28 56 36
73 1 2 23 24 13
74 2 2 26 90 4
75 1 4 28 88 4
76 1 2 47 69 4
77 1 4 28 88 4
78 1 5 29 87 4
79 1 5 29 87 4
80 1 2 26 90 4
81 2 1 25 91 4
82 1 2 26 90 4
83 1 2 26 90 4
84 1 4 28 88 4
85 1 8 32 84 4
86 1 10 34 79 7
87 1 5 29 87 4
88 1 1 0 12 18 83 3 4
89 1 3 27 89 4
90 1 1 25 91 4
91 1 2 26 114 4
92 1 4 28 79 13
93 1 4 28 88 4
94 2 7 31 82 7
95 1 3 27 89 4
96 1 1 25 91 4
97 1 1 25 91 4
98 1 1 25 91 4
99 1 1 25 91 4
100 1 4 28 88 4
101 1 4 28 19 13
102 1 3 27 89 4
103 1 1 25 91 4
104 1 2 26 90 4
105 1 2 26 90 4
106 1 3 27 89 4
107 2 4 28 88 4
108 2 4 28 88 4
109 2 5 29 87 4
110 1 4 28 88 4
111 2 2 26 90 4
112 1 2 26 90 4
113 1 3 27 89 4
114 1 4 28 88 4
115 1 3 27 89 4
116 1 2 26 90 4
117 1 5 29 87 4
118 1 4 28 88 4
119 1 4 59 57 4
1-8
120 1 3 27 89 4
121 1 4 0 116 4
122 1 4 28 88 4
123 1 3 27 89 4
124 1 4 28 88 4
125 1 4 28 88 4
126 1 3 27 89 4
127 1 2 26 90 4
128 1 3 27 89 4
129 1 5 29 87 4
130 1 2 26 90 4
131 1 3 27 89 4
3
---------------------------------------------------------------
MORTGAGE LOAN YM ADMINISTRATIVE MORTGAGE
LOAN NO. GROUP FORMULA(25) COST RATE(26) LOAN NO.
---------------------------------------------------------------
1 1 2.150 1
2 1 2.150 2
3 1 2.150 3
4 1 2.150 4
5 1 2.150 5
6 1 2.150 6
7 1 2.150 7
8 1 2.150 8
9 1 1.150 9
10 1 2.150 10
11 1 2.150 11
12 1 2.150 12
13 1 2.150 13
14 1 2.150 14
15 1 2.150 15
16 1 2.150 16
17 1 A 2.150 17
18 1 5.150 18
19 1 5.150 19
20 1 5.150 20
21 1 5.150 21
22 1 5.150 22
23 1 5.150 23
24 1 5.150 24
25 1 1.150 25
26 1 2.150 26
27 1 B 2.150 27
28 1 7.150 28
29 1 2.150 29
30 1 2.150 30
31 1 2.150 31
32 1 2.150 32
33 1 2.150 33
1-9
34 1 2.150 34
35 1 2.150 35
36 1 7.150 36
37 2 C 2.150 37
38 1 2.150 38
39 1 C 2.150 39
40 1 7.150 40
41 1 2.150 41
42 2 2.150 42
43 1 2.150 43
44 1 2.150 44
45 1 2.150 45
46 1 B 2.150 46
47 1 7.150 47
48 1 2.150 48
49 1 7.150 49
50 2 2.150 50
51 1 2.150 51
52 1 2.150 52
53 2 8.150 53
54 1 2.150 54
55 1 2.150 55
56 1 2.150 56
57 1 D 2.150 57
58 1 2.150 58
59 1 2.150 59
60 2 2.150 60
61 1 2.150 61
62 1 C 12.150 62
63 1 C 12.150 63
64 1 2.150 64
65 1 2.150 65
66 1 2.150 66
67 1 2.150 67
68 1 E 8.150 68
69 1 2.150 69
70 2 12.150 70
71 1 2.150 71
72 1 2.150 72
73 1 D 2.150 73
74 2 2.150 74
75 1 2.150 75
76 1 F 7.150 76
77 1 2.150 77
78 1 2.150 78
79 1 2.150 79
80 1 D 2.150 80
81 2 8.150 81
82 1 12.150 82
83 1 2.150 83
1-10
84 1 G 2.150 84
85 1 2.150 85
86 1 2.150 86
87 1 2.150 87
88 1 H 2.150 88
89 1 2.150 89
90 1 2.150 90
91 1 2.150 91
92 1 2.150 92
93 1 2.150 93
94 2 I 2.150 94
95 1 2.150 95
96 1 12.150 96
97 1 7.150 97
98 1 2.150 98
99 1 2.150 99
100 1 2.150 100
101 1 12.150 101
102 1 2.150 102
103 1 8.150 103
104 1 2.150 104
105 1 2.150 105
106 1 2.150 106
107 2 J 12.150 107
108 2 J 12.150 108
109 2 2.150 109
110 1 2.150 110
111 2 G 2.150 111
112 1 2.150 112
113 1 2.150 113
114 1 2.150 114
115 1 2.150 115
116 1 2.150 116
117 1 2.150 117
118 1 2.150 118
119 1 C 2.150 119
120 1 2.150 120
121 1 B 2.150 121
122 1 8.150 122
123 1 12.150 123
124 1 2.150 124
125 1 2.150 125
126 1 2.150 126
127 1 8.150 127
128 1 2.150 128
129 1 2.150 129
130 1 2.150 130
131 1 2.150 131
2.795
1-11
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, 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 of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have 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. 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. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (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, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder
2-1
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property, any personal
property leases applicable to such personal property and any Permitted
Encumbrances. Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of Uniform Commercial Code financing statements are required in order to effect
such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below and
any Permitted Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to occupy,
use or possess all or any portion of the real property subject to the related
Mortgage, 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
has been executed and delivered in favor of the Trustee and is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Assignment of Leases. If an Assignment of Leases exists
with respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since October 31, 2006.
7. Condition of Property; Condemnation. Except with respect to Mortgage Loans
secured primarily by unimproved land: (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2,
2-2
each Mortgaged Property is, to the Seller's knowledge, free and clear of any
damage (or adequate reserves therefor have been established based on the
engineering report) that would materially and adversely affect its value as
security for the related Mortgage Loan, and (ii) with respect to the Mortgaged
Properties securing the Mortgage Loans that were not the subject of an
engineering report 18 months prior to the Closing Date as set forth on Schedule
A to this Exhibit 2, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the Title Policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
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 and 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) will inure to the benefit of the Trustee without the
consent of, or notice to, the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to, a public road.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion of any
on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose that were to have been
complied with on or before the Closing Date, or any such funds so escrowed have
not been released.
2-3
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) 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.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
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 the related Mortgage Loan.
12. Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment
after the first day of the month that is 18 months prior to the
Closing Date, an environmental site assessment, or an update of a
previous such report, was performed with respect to each Mortgaged
Property in connection with the origination or the acquisition of
the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged
Property) (an "Environmental Report") has been delivered to the
Purchaser, and the Seller has no knowledge of any material and
adverse environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance covering
such condition was obtained or must be maintained until the
condition is remediated or (iii) the related Mortgagor was
required either to provide additional security that was deemed to
be sufficient by the originator in light of the circumstances
and/or to establish an operations and maintenance plan. In
connection with the origination of each Mortgage Loan, each
environmental consultant has represented in such Environmental
Report or in a supplement letter that the environmental assessment
of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American
Society for Testing and Materials (ASTM) Standard Practice E
1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment meeting ASTM standards after the first day of the month
that is 18 months prior to the Closing Date as set forth on
Schedule A to this Exhibit 2, (i) no Hazardous Material is present
on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely
affected or (2) under applicable federal, state
2-4
or local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not
have a material adverse effect on the value of such Mortgaged
Property and neither the Seller nor, to the Seller's knowledge,
the related Mortgagor or any current tenant thereon, has received
any notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance, material or
waste as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
xx.xx. 6901 et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. xx.xx. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. xx.xx. 1251 et seq.),
the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of Leases
and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor 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 market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and 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 agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated like properties in the locality of
the Mortgaged Property (so-called "All Risk" coverage) in an amount not less
than the lesser of the principal balance of the related Mortgage Loan and the
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replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered delinquent or unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a debtor
in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate
in real estate or, if the related Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease" which term shall include any related estoppel letter
or lender protection agreement between the Seller and related lessor), by the
related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such Ground
Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
does not prohibit the current use of the
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Mortgaged Property and does not prohibit the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the payment terms of such
Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and the Trustee as its assignee upon notice to, but
without the consent of, the lessor thereunder (or, if such consent
is required, it has been obtained prior to the Closing Date) and,
in the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but
without the need to obtain the consent of, such lessor or if such
lessor's consent is required it or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto,
and the Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a
copy of such notice has been delivered to such holder and the
lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the economic
terms of the Ground Lease.
(vi) A mortgagee 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 has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage
Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
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appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon;
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the
lessee thereunder for any reason, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage;
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
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21. Advancement of Funds by the Seller. No holder of a 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, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged 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, except, in each case, for liens insured against by the
Title Policy referred to herein, and 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 except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Laws. Except as otherwise specifically disclosed in an
exception on Schedule A attached hereto to another representation and warranty
made by the seller in this Exhibit 2, at origination, each Mortgage Loan
complied with all material applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined release price and prepayment consideration in connection
therewith. Except as described in the first sentence hereof and for those
Mortgage Loans identified on Schedule A, no Mortgage Loan permits the full or
partial release or substitution of collateral unless the mortgagee or servicer
can require the Mortgagor to provide an opinion of tax counsel to the effect
that such release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. ss.1.860G-2(b)(2) and (b) would not cause such Mortgage Loan to fail to be
a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
The loan documents require the related Mortgagor to bear the cost of such
opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or provides for negative amortization
(except that the ARD Loan may provide for the accrual of interest at an
increased rate after the Anticipated Repayment Date) or for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property.
27. No Material Default. To the Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of
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notice, or both, would constitute any of the foregoing) under the documents
evidencing or securing the Mortgage Loan, in any such case to the extent the
same materially and adversely affects the value of the Mortgage Loan and the
related Mortgaged Property; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach, violation or
event of acceleration that specifically pertains to any matter otherwise covered
by any other representation and warranty made by the Seller elsewhere in this
Exhibit 2 or the exceptions listed in Schedule A attached hereto.
28. Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
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. The Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien (other than a
Permitted Encumbrance) junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller, there
are no actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the Seller or
any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable mortgage loans, as
of the date of origination of each Mortgage Loan or as of the date of the sale
of the related Mortgage Loan by the Seller hereunder, the related Mortgagor 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.
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34. Assisted Living Facility Regulation. If the Mortgaged Property is operated
as an assisted living facility, to Seller's knowledge (a) the related Mortgagor
is in compliance in all material respects with all federal and state laws
applicable to the use and operation of the related Mortgaged Property and (b) if
the operator of the Mortgaged Property participates in Medicare or Medicaid
programs, the facility is in compliance in all material respects with the
requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. [Reserved].
38. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, 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 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 (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
39. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
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40. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
41. Defeasance. No Mortgage Loan provides that it can be defeased until a date
that is more than two years after the Closing Date, or provides that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
42. Authorized to do Business. To the extent required under applicable law as
of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
43. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
44. Terrorism Insurance. With respect to each Mortgage Loan that has a Stated
Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not, as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
45. Operating Statements and Rent Rolls. In the case of each Mortgage Loan,
the related Mortgage Loan Documents require the related Mortgagor, in some cases
at the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except if
the Mortgage Loan has an outstanding principal balance of less than or equal to
$3,500,000 as of the Cut-Off Date or the related Mortgaged Property has only one
tenant, in either of which cases, the Mortgage Loan Documents require the
Mortgagor, in some cases at the request of the lender, to provide to the holder
of such Mortgage Loan
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operating statements and (if there is more than one tenant) rent rolls and/or
financial statements of the Mortgagor annually), and such other information as
may be required therein.
46. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a) (but without regard to the rule in Treasury Regulation Sections
1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as a
qualified mortgage, or any substantially similar provision).
47. No Fraud in Origination. A court of competent jurisdiction will not find,
in a final non-appealable judgment, that an employee of Seller actively
participated with the Borrower in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Borrower is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan, and such appraisal satisfied the
guidelines in Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as in effect on the date such Mortgage Loan was
originated.
49. Foreclosure Property. The Seller is not selling any Mortgage Loan as part
of a plan to transfer the underlying Mortgaged Property to the Purchaser, and
the Seller does not know or, to the Seller's knowledge, have reason to know that
any Mortgage Loan will default. The representations in this paragraph 48 are
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
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Schedule A to Exhibit 2
Exceptions to Representations and Warranties
2006-HQ10 - Xxxxxx Xxxxxxx Mortgage Capital Inc.
Schedule A: Representation Exceptions
REP. 2. Whole Loan; Ownership of Mortgage Loans,
REP. 5. Assignment of Leases and Rents,
REP. 24. Cross-collateralization, and
REP. 30. Junior Lien.
Mortgage Loan No. ___, Waterside Shops, and Mortgage Loan No. ___, Sony Pictures
Plaza, are each secured by a Mortgage that also secures a junior "B" loan other
than one or more other Mortgage Loans. The related loan is described in the
Prospectus Supplement.
Mortgage Loan No. ___, Cherry Creek, and Mortgage Loan No. ___, Michigan Plaza,
are each secured by a Mortgage that also secures a pari passu loan other than
one or more other Mortgage Loans. The relevant Mortgage Loan is serviced
pursuant to a pooling and servicing agreement other than the HQ10 Pooling and
Servicing Agreement, and ownership of the loan documents are nominally held
pursuant to that pooling and servicing agreement. The related loan is described
in the Prospectus Supplement.
REP. 14. Insurance.
Certain of the Mortgage Loans do not require the insurance to name the lender as
an additional insured, although the insurance policies must provide that all
proceeds shall be payable to the lender as set forth in the respective loan
agreement.
With respect to certain of the Mortgage Loans, if the net proceeds from
insurance do not exceed a certain net proceeds availability threshold amount,
then the net proceeds will be disbursed directly to the borrower, provided
certain conditions are met, without an express requirement to apply the net
proceeds to restoration of the Mortgaged Property. Nevertheless, the loan
documents contain an independent covenant on the part of the borrower to repair
and restore the Mortgaged Property.
Mortgage Loan No. __, Burbank Shopping Center, permits Kmart to self insure,
subject to net worth requirements. Mortgage Loan No. __, CVS Clearlake; No. ___,
Eckerd Philadelphia; No. ___, CVS McMinnville; and No. ___, Rite Aid Wilmington
each permits the tenant to self insure.
With respect to Mortgage Loan No. ___, Xxxxxx Furniture, the tenant has the
right to receive casualty insurance proceeds.
With respect to Mortgage Loan No. ___, 000 Xxxx Xxxxxx, the insurance
requirements under the loan agreement are deemed to be satisfied provided the
insurance requirements under the ground lease, where the borrower is the ground
lessor, are satisfied by the tenant thereunder. The ground lease names the
borrower as an additional insured, but does not name the mortgagee. Casualty
proceeds which exceed the cost of the casualty restoration work belong to the
tenant.
REP. 17. Leasehold Estate.
With respect to Mortgage Loan No. ___, Waterside Shops, the following exceptions
apply with the portion of the Mortgaged Property that is a leasehold estate:
Rep 17(iv): The Waterside Shops ground lease does not provide that a
material amendment to such lease is not binding on a mortgagee unless the
mortgagee has consented to such amendment;
Rep 17(v): The Waterside Shops ground lease does not require the lessor to
give notice of any default by the lessee to the holder of the mortgage and does
not provide that no notice of termination is effective against the mortgage
holder unless a copy has been delivered to such holder and the lessor has
offered or is required to enter into a new lease;
Rep 17(x): The Waterside Shops ground lease does not require the lessor to
enter into a new lease upon termination of the ground lease if the ground lease
is rejected in a bankruptcy proceeding;
With respect to Mortgage Loan No. __, Bootheel Plaza, a portion of the Mortgaged
Property is subject to a ground lease that does not contain the lender
protections contemplated by this representation. The lender did not include any
income from tenants of the ground leased property in its underwriting.
REP. 25. Release of Mortgaged Property.
With respect to Mortgage Loan Nos. [__], Fort Roc Portfolio, the mortgage loan,
which is secured by multiple mortgaged properties, permits the release of one or
more properties from the lien of the related mortgage after the applicable
lock-out period upon defeasance of an amount equal to 125% of the allocated loan
amount of the mortgaged property being released provided that, among other
conditions, (i) the DSCR of the remaining properties immediately following the
release is at least 1.18x, and (ii) the LTV of the remaining properties is not
greater than 76%.
With respect to Mortgage Loan Nos. [__], AZ Office/Retail Portfolio, after the
lockout period, the borrower may defease an individual loan provided that the
remaining loans have a combined DSCR of at least 1.40x, and a combined LTV of no
greater than 70%. If these tests are not reached, the borrower shall prepay,
with a minimum yield maintenance premium of 1%, the loans pro rata in an amount
such that the DSCR and LTV tests are achieved.
With respect to Mortgage Loan Nos. [__], Bootheel Plaza, the mortgage loan
permits the release of a parcel from the lien of the related mortgage on or
after 12 months after the note date provided that, among other conditions, (i)
the DSCR of the remaining property immediately following the release is at least
1.50x, and (ii) the LTV of the remaining property is not greater
than 66%. After the partial release, the borrower may not lease space on the
release parcel to and terminate the lease of any tenant leasing space at the
remaining property unless, after the commencement date of the new lease on the
released parcel, among other conditions, (i) the DSCR of the remaining property
immediately following the release is at least 1.50x, and (ii) the LTV of the
remaining property is not greater than 66%.
With respect to Mortgage Loan Nos. [__], Gloucester Portfolio, after the lockout
period, the borrower may defease one or more properties from the lien of the
related mortgage after payment of a release price equal to 115% of the allocated
loan amount of the mortgaged property being released, along with the applicable
yield maintenance premium, provided that, among other conditions, (i) the DSCR
of the remaining property is equal to or greater than 1.25x, (ii) the LTV of the
remaining property is equal to or less than 78%, and (iii) lender receives
rating agency approval. In order to obtain release of the multifamily property
located at 00 Xxxxx Xxxxx, the borrower must, in addition to satisfying the
above conditions, (i) deliver an appraisal for the multifamily property as an
individual property, (ii) provide evidence that the property has been legally
subdivided from the office property tax lot, and (iii) pay a release price of
115% of 75% of the appraised value, along with the applicable yield maintenance
premium. Lender will determine the new release price for the office property by
subtracting the multifamily release price from $2,760,000.
REP. 29. Local Law Compliance.
With respect to Mortgage Loan No. __, Eagle Crest Apartments, and Mortgage Loan
No. __, Yukon Court Apartments, a portion of the property was built over setback
restrictions and is nonconforming.
With respect to Mortgage Loan No. ___, 000 Xxxxx Xxx., one tenant (New York
Sports Club) has an expired public assembly permit. The permit does not affect
the tenant's obligation to pay rent.
REP. 30. Junior Liens.
With respect to Mortgage Loan No. [ ], West Oaks Plaza, the borrower has the
right in the future to obtain subordinate secured financing after the sale or an
assumption of the property provided that, among other conditions, (i) the
combined LTV does not exceed 80%, and (ii) the combined DSCR is not less than
1.10x.
REP 36. Due on Sale (encumbrance).
Each of the following Mortgage Loans permits the parent of the borrower to
obtain future mezzanine financing, provided certain conditions are met:
With respect to Mortgage Loan No. ___, Village at Sand Hill, future mezzanine
financing debt is permitted subject to various conditions, including that the
amount will not result in an aggregate LTV greater than 80% or DSCR less than
1.20x.
Mortgage Loan No. , Michigan Plaza, allows two parent companies of the Borrower,
Farringdon LLC or Kiddington LLC ("Borrowing Entity"), to incur indebtedness
provided the
indebtedness (a) is not secured by any assets of the Michigan Plaza Borrower,
Michigan Plaza Mezz I LLC or Borrowing Entity and is otherwise unsecured, (b) is
subordinate in all respects to the Michigan Plaza Loan and is payable only to
the extent of any excess cash flow from the Michigan Plaza Property distributed
to Michigan Plaza Mezz I LLC and then to Borrowing Entity after payment by the
Michigan Plaza Borrower of all due and payable loan payments and expenses, (c)
is subject to a standstill agreement, and (d) is used solely for capital
improvements, tenant improvements made by the Michigan Plaza Borrower, leasing
commissions, debt service under the loan and operating expenses, in each case
related to the Michigan Plaza Property.
Mortgage Loan No. , AZ Office/Portfolio allows for permitted transfers of
individual properties within the AZ Office/Retail Portfolio, provided certain
conditions are satisfied, including that after giving effect to such transfer:
(a) the transferred property shall have a debt service coverage ratio of not
less than 1.40:1.0 and a loan-to-value ratio of no greater than 70% based upon
an updated appraisal, provided that in the event the property does not satisfy
such debt service coverage ratio and loan-to-value requirements, the AZ
Office/Retail Portfolio Borrower may voluntarily prepay the AZ Office/Retail
Portfolio Loan by an amount that would cause the debt service coverage ratio and
loan-to-value requirements when calculated on the reduced principal amount of
the loan with respect to the transferred property to be met, with any such
prepayment to include the applicable yield maintenance premium on the amount so
prepaid; and (b) the remaining related properties in the AZ Office/Retail
Portfolio shall have an aggregate debt service coverage ratio of not less than
1.40:1.0 and a loan-to-value ratio of no greater than 70% based upon updated
appraisals, provided that in the event the related properties do not satisfy
such aggregate debt service coverage ratio and loan-to-value requirements, the
AZ Office/Retail Portfolio Borrower may voluntarily prepay the related loans on
a pro-rata basis by an amount that would cause the aggregate debt service
coverage ratio and loan-to-value requirements when calculated on the reduced
principal amounts of the related loans to be met, with any such prepayment to
include the applicable yield maintenance premium on the amount so prepaid.
Simultaneously with any such conveyance, the individual mortgage and other loan
documents shall no longer secure or be cross-defaulted with the related loans
and related mortgages, the individual note shall no longer be secured by the
related mortgages or any other related loan documents, and the loan shall no
longer be cross-defaulted with the related loans or related loan documents.
With respect to Mortgage Loan No. [ ], One Bethesda Center, the borrower has the
right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 80%, and (ii) the combined DSCR
is not less than 1.20x.
With respect to Mortgage Loan No. [ ], Hilton Garden Inn X'Xxxx, the borrower
has the right in the future to obtain mezzanine financing provided that, among
other conditions, (i) the combined LTV does not exceed 80%, and (ii) the
combined DSCR is not less than 1.25x.
With respect to Mortgage Loan No. [ ], Courtyard by Marriott - Charleston, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 70%, and (ii)
the combined DSCR is not less than 1.25x.
With respect to Mortgage Loan No. [ ], Village at Sandhill Forum Center, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 80%, and (ii)
the combined DSCR is not less than 1.20x.
With respect to Mortgage Loan No. [ ], Copperwood Apartments, the borrower has
the right in the future to obtain future mezzanine financing provided that,
among other conditions, the outstanding principal balance of the debt shall
never exceed $3,886,104.75.
With respect to Mortgage Loan No. [ ], The Texan Apartments, the borrower has
the right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 80%, and (ii) the combined DSCR
is not less than 1.20x.
With respect to Mortgage Loan No. [ ], Xxxxxxxx Grove, the borrower has the
right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 75%, and (ii) the combined DSCR
is not less than 1.25x.
With respect to Mortgage Loan No. [ ], Hilton Garden Inn Scottsdale, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 80%, and (ii)
the combined DSCR is not less than 1.25x. Additionally, the borrower has the
right in the future to obtain subordinate unsecured financing of up to
$1,200,000 less the amount of any outstanding trade payables and unsecured
operational debt provided that, among other conditions, (i) the interest rate of
such loan does not exceed 6% per annum, and (ii) the maturity date of such loan
has a maturity date at least six months beyond the term of the subject loan. So
long as any portion of the permitted subordinate unsecured financing is
outstanding, the borrower is not permitted to obtain mezzanine financing.
With respect to Mortgage Loan No. [ ], Xxxxxx Furniture & Interiors - Naples,
the borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 85%, and (ii)
the combined DSCR is not less than 1.15x.
With respect to Mortgage Loan No. [ ], Hampton Inn - West Springfield, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, the amount does not exceed $700,000.
With respect to Mortgage Loan Nos. [ ], Gloucester Portfolio, the borrower has
the right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 85%, and (ii) the combined DSCR
is not less than 1.10x.
With respect to Mortgage Loan No. [ ], Hampton Inn & Suites - Destin, the
borrower has the right after September 1, 2008 to obtain mezzanine financing
provided that, among other conditions, (i) the combined LTV does not exceed 80%,
and (ii) the combined DSCR is not less than 1.20x.
With respect to Mortgage Loan No. [ ], 4 Home Depot Drive, the borrower has the
right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 80%, and (ii) the combined DSCR
is not less than 1.20x.
With respect to Mortgage Loan No. [ ], Xxxxxxx Inn - Xxxxxxxx, the borrower has
the right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 80%, and (ii) the combined DSCR
is not less than 1.40x.
With respect to Mortgage Loan No. [ ], Northern Lights Medical Center, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 85%, (ii) the
combined DSCR is not less than 1.10x, and the amount does not exceed $500,000.
With respect to Mortgage Loan No. [ ], 357 Office Building, the borrower has the
right in the future to obtain mezzanine financing provided that, among other
conditions, (i) the combined LTV does not exceed 85%, and (ii) the combined DSCR
is not less than 1.10x.
With respect to Mortgage Loan No. [ ], CVS - South Portland, the borrower has
the right in the future to obtain mezzanine financing provided that, among other
conditions, (i) CVS is in occupancy, open for business and paying rent, and (ii)
the combined DSCR is not less than 1.05x.
With respect to Mortgage Loan No. [ ], Street of Shoppes, the borrower has the
right in the future to obtain mezzanine financing provided that, among other
conditions, the combined LTV does not exceed 80%.
Each of the following Mortgage Loans currently has mezzanine financing in place:
No. ___, Shops at Briargate;
No. ___, 00 Xxxxx Xxxxxx;
No. ___, PPG Portfolio;
No. ___, Basin Street Landing; and
No. ___, Laurel Canyon Apartments Phase II.
REP. 38. Non-Recourse Exceptions.
Each of the following Mortgage Loans is not recourse to a natural person, nor is
any natural person liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the borrower,
misappropriation of rents, insurance proceeds or condemnation awards, or
breaches of the environmental covenants in the Mortgage Loan documents:
No. ___, Waterside Shops;
No. ___, Shops at Briargate;
No. ___, Michigan Plaza;
No. ___, Cherry Creek;
No. ___, Southport Town Center;
No. ___, 000 Xxxx Xxxxxx;
No. ___, Covenant Transport Headquarters;
No. ___, Courtyard by Marriott - Charleston;
No. ___, Kings Supermarket - Creskill;
No. ___, Kings Supermarket - Maplewood;
No. ___, Kings Supermarket - Montclair;
No. ___, Kings Supermarket - Morristown;
No. ___, Kings Supermarket - Summit; and
No. ___, RLJ Portfolio: Residence Inn - Xxxxxxx.
REP. 43. Terrorism Insurance.
For each of the following loans, the borrower is required to maintain terrorism
insurance only to the extent obtainable for a maximum annual premium equal to
125% of the premium for the all risk insurance (excluding terrorism):
No. ___, Kings Supermarket - Creskill;
No. ___, Kings Supermarket - Maplewood;
No. ___, Kings Supermarket - Montclair;
No. ___, Kings Supermarket - Morristown; and
No. ___, Kings Supermarket - Summit.
Mortgage Loan No. __, CVS Clearlake, does not require terrorism insurance. With
respect to Mortgage Loan No. __, Fort Roc Portfolio, terrorism insurance is not
required for space occupied by Kmart so long as the tenant has the obligation to
rebuild; terrorism insurance is not required for Rite Aid Wilmington.
With respect to Mortgage Loan No. __, 000 Xxxx Xxxxxx, the insurance
requirements under the loan agreement are subject to the insurance requirements
under the ground lease, where the borrower is the ground lessor. The ground
lease does not require terrorism insurance unless reasonably required by the
ground lessor.
Schedule B to Exhibit 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
Schedule C to Exhibit 2
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
None
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $1,543,119,252
Less Expenses ($3,543,760)
--------------
Net Proceeds $1,539,575,492
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,543,119,252
Allocable Expense Amount for MS Loans ($3,543,760)
--------------
Purchase Price of MS Loans $1,539,575,492
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of November 1, 2006 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3
to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this __ day of November, 2006.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ________________________________________
Name:___________________________________
Title:__________________________________
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ________________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO LASALLE BANK NATIONAL ASSOCIATION
AND LNR PARTNERS, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-HQ10
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of November 1, 2006 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), MSMC is selling certain multifamily and commercial mortgage loans
(the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of November 1, 2006 (the "Pooling and Servicing Agreement"), between
the Depositor, Xxxxx Fargo Bank National Association, as Master Servicer, LNR
Partners, Inc. ("LNR") as Special Servicer, Xxxxx Fargo Bank, National
Association, as Paying Agent and Certificate Registrar and LaSalle Bank National
Association ("LaSalle") as Trustee and Custodian, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, MSMC has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMC does hereby make, constitute and appoint LaSalle,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, MSMC's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in MSMC's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with respect to the
Mortgage Loans which are customarily and reasonably necessary or appropriate to
assign agreements, documents and instruments pertaining to the Mortgage Loans,
in each case in favor of the Trustee as set forth in the definition of "Mortgage
File" in, and in accordance with Section 1.1 of, the Pooling and Servicing
Agreement, and to evidence, provide notice of and
5-1
perfect such assignments and conveyances in favor of the Trustee in the public
records of the appropriate filing and recording offices; and (ii) to file or
record in the appropriate public filing or recording offices, all other Mortgage
Loan documents to be recorded under the terms of the Pooling and Servicing
Agreement or any such Mortgage Loan documents which have not been submitted for
filing or recordation by MSMC on or before the date hereof or which have been so
submitted but are subsequently lost or returned unrecorded or unfiled as a
result of actual or purported defects therein, in order to evidence, provide
notice of and perfect such documents in the public records of the appropriate
filing and recording offices. Notwithstanding the foregoing, this Limited Power
of Attorney shall grant to LaSalle and LNR only such powers, responsibilities
and authority as are set forth in Section 2.1 of the Mortgage Loan Purchase
Agreement.
MSMC does also hereby make, constitute and appoint LNR, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
MSMC's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in MSMC's name, place and stead solely to exercise and perform all of the
rights, authority and powers of LaSalle as set forth in the preceding paragraph
in the event of the failure or the incapacity of LaSalle to do so for any
reason. As between LNR and any third party, no evidence of the failure or
incapacity of LaSalle shall be required and such third party may rely upon LNR's
written statement that it is acting pursuant to the terms of this Limited Power
of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMC's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMC might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMC agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMC, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMC's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMC and MSMC's successors and assigns.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
with respect to the Trustee, the appointment of a receiver or conservator
with respect to the business of the Trustee, or the filing of a
voluntary or involuntary petition in bankruptcy by or against the
Trustee;
with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or
the filing of a voluntary or involuntary petition in bankruptcy by
or against the Special Servicer;
with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance
with its terms; and
with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to
the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of MSMC under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, MSMC has caused this instrument to be executed and its
corporate seal to be affixed hereto by its officer duly authorized as of
November 9, 2006.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: _____________________________________
Name: _____________________________________
Title:_____________________________________
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 9th day of November, 2006, before me appeared _________________,
to me personally known, who, being by me duly sworn did say that he/she is the
_________________ of Xxxxxx Xxxxxxx Mortgage Capital Inc., and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said _________________ acknowledged
said instrument to be the free act and deed of said corporation.
____________________________________________
Name:_______________________________________
Notary Public in and for said County
and State
My Commission Expires:
______________________________
