EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 1, 2006
(this "Agreement"), is entered into between NOMURA CREDIT & CAPITAL, INC. (the
"Seller") and WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2006, among the Purchaser, as depositor, Wachovia Bank, National Association,
as master servicer (in such capacity, the "Master Servicer"), LNR Partners,
Inc., as special servicer (the "Special Servicer") and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein
(including the Schedules attached hereto) have the respective meanings set forth
in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $897,454,002 (the "Nomura Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received.
The Nomura Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-Off Date (after
giving effect to any payments due on or before such date whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-Off Date Pool Balance") of $4,229,859,030 (subject to a variance of plus or
minus 5.0%). The purchase and sale of the Mortgage Loans shall take place March
7, 2006, or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Aggregate Purchase
Price") for the Mortgage Loans shall be equal to (i) % of the Nomura
Mortgage Loan Balance as of the Cut-Off Date, plus (ii) $838,472, which amount
represents the amount of interest accrued on the Nomura Mortgage Loan Balance at
the related Net Mortgage Rate for the period from and including the Cut-Off Date
up to but not including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the Aggregate Purchase Price and satisfaction of the other conditions
to closing that are for the benefit of the Seller, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse (except as set forth in this Agreement), all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, on a servicing released basis, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected on or after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2006-C23" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with any
and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information), of (a) the Mortgage, (b)
any related Assignment of Leases (if such item is a document separate from
the Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2006-C23", or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned pursuant
to clause (iv) above), in favor of "Xxxxx Fargo Bank, N.A., as trustee for
the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2006-C23", or in
blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C23, as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum
of Ground Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or
security agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents relating to such Mortgage Loan;
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and applicable transfer or
assignment documents; and
(xiv) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each Mortgage Note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of Delaware and possesses
all requisite authority, power, licenses, permits and franchises to carry
on its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws relating to or affecting the enforcement of creditors' rights in
general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a material default (or
an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party or
by which the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement;
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to
the Purchaser in exchange for consideration consisting of a cash amount
equal to the Aggregate Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller; and
(ix) The Seller has examined the information set forth under
the caption "Description of the Mortgage Pool--Significant Originators"
and "--The Sponsor" (the "Regulation AB Information") in the Preliminary
Prospectus Supplement (as defined below), the Preliminary Memorandum (as
defined below), the Prospectus Supplement, (as defined below), to the
accompanying Prospectus (as defined below) and the Memorandum (as defined
below), relating to the Certificates. The Regulation AB Information
complies with all applicable requirements of Regulation AB (as defined
below).
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) shall be held by the Trustee until the earlier of (x) the
date on which the Master Servicer certifies to the Trustee and the Controlling
Class Representative that such exception has been cured (or the Trustee
certifies the same to the Controlling Class Representative), at which time such
funds or letter of credit, as applicable, shall be returned to the Seller and
(y) thirty (30) Business Days or, if the Controlling Class Representative has
extended the cure period, forty-five (45) Business Days after the Closing Date;
provided, however, that if such exception is not cured within such thirty (30)
Business Days or forty-five (45) Business Days, as the case may be, (A) in the
case of clause (2), the Trustee shall retain the funds or letter of credit, as
applicable, or (B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan and any letter of credit will be returned to the
Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from the date
that any party to the Pooling and Servicing Agreement discovers such Document
Defect or Breach; provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the applicable Mortgage Loan, the interest of the Trust therein or the
interests of any Certificateholder, cure such Document Defect or Breach, as the
case may be, in all material respects, which shall include payment of actual or
provable losses and any Additional Trust Fund Expenses directly resulting from
any such Document Defect or Breach or, if such Document Defect or Breach (other
than omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the Master Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith; provided, however, that unless the
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, such Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan); provided, further, that
with respect to such additional 90-day period the Seller shall have delivered an
officer's certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; provided, further, that no Document Defect (other than
with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease,
any letter of credit, any franchise agreement, any comfort letter and (if
required) any comfort letter transfer documents (collectively, the "Core
Material Documents")) shall be considered to materially and adversely affect the
value of the related Mortgage Loan, the interests of the Trust therein or the
interests of any Certificateholder unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligations; provided, further, with respect to Document Defects which
materially and adversely affect the interests of any Certificateholder, the
interests of the Trust therein or the value of the related Mortgage Loan, other
than with respect to Document Defects relating to the Core Material Documents,
any applicable cure period following the initial 90 day cure period may be
extended by the Master Servicer or the Special Servicer if the document involved
is not needed imminently. Such extension will end upon 30 days notice of such
need as reasonably determined by the Master Servicer or Special Servicer (with a
possible 30 day extension if the Master Servicer or Special Servicer agrees that
the Seller is diligently pursuing a cure). The Seller shall cure all Document
Defects which materially and adversely affect the interests of any
Certificateholder, the interests of the Trust therein or the value of the
related Mortgage Loan, regardless of the document involved, no later than two
years following the Closing Date; provided that the initial 90 day cure period
referenced in this paragraph may not be reduced. For a period of two years from
the Closing Date, so long as there remains any Mortgage File relating to a
Mortgage Loan as to which there is any uncured Document Defect or Breach, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure. Notwithstanding the foregoing, the delivery
of a commitment to issue a policy of lender's title insurance as described in
Representation 12 of Schedule I hereof in lieu of the delivery of the actual
policy of lender's title insurance shall not be considered a Document Defect or
Breach with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred in good faith by the Purchaser in connection with such
modification or accommodation (including, but not limited to, recoverable
attorney fees) shall be paid by the Seller.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3. Nothing in this Agreement shall prohibit the
Purchaser or its assigns (including the Master Servicer and/or the Special
Servicer) from pursuing any course of action authorized by the Pooling and
Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the Seller in writing of its
intention to liquidate such Defaulted Mortgage Loan or REO Property at least 45
days prior to any such action. If (a) the Seller consents to such sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or REO Property or
(b) a court of competent jurisdiction determines that the Seller is liable under
this Agreement to repurchase such Defaulted Mortgage Loan or REO Property, then
such Seller shall remit to the Purchaser an amount equal to the difference if
any of the price of such Defaulted Mortgage Loan or REO Property as sold and the
price at which the Seller would have had to repurchase such Defaulted Mortgage
Loan or REO Property under this Agreement. The Seller shall have 10 Business
Days after receipt of notice to determine whether or not to consent to such
sale. If the Seller does not consent to such sale, the Special Servicer shall
contract with a Determination Party (as defined in the Pooling and Servicing
Agreement) as to the merits of such proposed sale. If the related Determination
Party determines that such proposed sale is in accordance with the Servicing
Standard and the provisions of the Pooling and Servicing Agreement with respect
to the sale of Defaulted Mortgage Loans and REO Properties and, subsequent to
such sale, a court of competent jurisdiction determines that the Seller was
liable under this Agreement and required to repurchase such Defaulted Mortgage
Loan or REO Property in accordance with the terms hereof, then the Seller shall
remit to the Purchaser an amount equal to the difference (if any) between the
proceeds of the related action and the price at which the Seller would have been
obligated to pay had the Seller repurchased such Defaulted Mortgage Loan or REO
Property prior to the execution of a binding contract of sale with a third party
in accordance with the terms hereof including the costs related to contracting
with the related Determination Party; provided that the foregoing procedure in
this Section 3(f) shall not preclude such Seller from repurchasing the Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the other provisions of this Section
3 (excluding this Section 3(f)). If the related Determination Party determines
that the sale of the related Defaulted Mortgage Loan or REO Property is not in
accordance with the Servicing Standards and the provisions of the Pooling and
Servicing Agreement with respect to the sale of Defaulted Mortgage Loans and REO
Properties and the Special Servicer subsequently sells such Mortgage Loan or REO
Property, then the Seller will not be liable for any such difference (nor any
cost of contracting with the Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
90 days of the Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made in
full, this paragraph describes the sole remedy available to the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf regarding any such Breach and the Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution, delivery or
performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
require or will require the consent of any third person or constitutes or will
constitute a default under (A) any term or provision of the Purchaser's
certificate of incorporation or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform its obligations under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency or body, which default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Purchaser, the Seller, the Underwriters, the Initial
Purchasers and their respective counsel in their reasonable discretion, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) The letters shall have been received from the independent
accounting firm KPMG LLP, in form satisfactory to the Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus, the Prospectus Supplement, the Preliminary Memorandum and the
Memorandum.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that: (i)
the representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement 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;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Preliminary Prospectus Supplement together with all
other Time of Sale Information delivered prior to the Time of Sale and nothing
has come to his attention that would lead him to believe that the Specified
Portions of the Preliminary Prospectus Supplement together with all other Time
of Sale Information delivered prior to the Time of Sale, as of the Time of Sale,
or as of the Closing Date, included or include any untrue statement of a
material fact relating to the Mortgage Loans or omitted or omit to state therein
a material fact necessary in order to make the statements therein relating to
the Mortgage Loans, in light of the circumstances under which they were made,
not misleading, (ii) such officer has carefully examined the Specified Portions
of the Prospectus Supplement and nothing has come to his attention that would
lead him to believe that the Specified Portions of the Prospectus Supplement, as
of the date of the Prospectus Supplement, or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (iii) such officer has
examined the Specified Portions of the Memorandum and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Memorandum, as of the date thereof or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein related to the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading. The "Specified
Portions" of the Prospectus Supplement shall consist of Annex A thereto, the
diskette which accompanies the Prospectus Supplement (insofar as such diskette
is consistent with such Annex A) and the following sections of the Prospectus
Supplement (exclusive of any statements in such sections that purport to
summarize the servicing and administration provisions of the Pooling and
Servicing Agreement): "Summary of Prospectus Supplement--The Parties--The
Mortgage Loan Sellers," "Summary of Prospectus Supplement--The Mortgage Loans,"
"Risk Factors--The Mortgage Loans," and "Description of the Mortgage
Pool--General," "--Mortgage Loan History," "--Certain Terms and Conditions of
the Mortgage Loans," "--Assessments of Property Condition," "--Co-Lender Loans,"
"--Additional Mortgage Loan Information," "--Twenty Largest Mortgage Loans,"
"--The Mortgage Loan Sellers," "--Underwriting Standards," and
"--Representations and Warranties; Repurchases and Substitutions." The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement and the first and second full paragraphs on page
"v" of the Memorandum.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the certificate of incorporation and by-laws of
the Seller, and an original or copy of a certificate of good standing of the
Seller issued by the State of Delaware not earlier than sixty (60) days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchasers within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Preliminary Memorandum, the
Memorandum, the Diskette or in any revision or amendment of or supplement to any
of the foregoing, (B) any Time of Sale Information or any Issuer Information
contained in any Free Writing Prospectus prepared by or on behalf of the
Underwriters (an "Underwriter Free Writing Prospectus") or contained in any Free
Writing Prospectus which is required to be filed in accordance with the terms of
the Underwriting Agreement, (C) any items similar to Free Writing Prospectuses
forwarded by the Seller to the Initial Purchasers, or in any revision or
amendment of or supplement to any of the foregoing or (D) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B), (C) and (D) above
being defined as the "Disclosure Material"), (ii) arise out of or are based upon
the omission or alleged omission to state therein (in the case of Free Writing
Prospectuses, when read in conjunction with any Time of Sale Information, in the
case of any items similar to Free Writing Prospectuses, when read in conjunction
with the Memorandum) and in the case of any summaries, reports, documents,
written or computer materials, or other information contemplated in clause (D)
above, when read in conjunction with the Memorandum and in the case of any Free
Writing Prospectus, when read in conjunction with the other Time of Sale
Information) a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; but, with respect to any Disclosure Material described in
clauses (A), (B) and (C) of the definition thereof, only if and to the extent
that (I) any such untrue statement or alleged untrue statement or omission or
alleged omission occurring in, or with respect to, such Disclosure Material,
arises out of or is based upon an untrue statement or omission with respect to
the Mortgage Loans, the related Mortgagors and/or the related Mortgaged
Properties contained in the Data File (it being herein acknowledged that the
Data File was and will be used to prepare the Prospectus Supplement and the
Preliminary Prospectus Supplement, including without limitation Annex A thereto,
any other Time of Sale Information, the Preliminary Memorandum, the Memorandum
and the Diskette with respect to the Registered Certificates and any items
similar to Free Writing Prospectuses forwarded to prospective investors in the
Non-Registered Certificates and any Free Writing Prospectus), (II) any such
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact occurring in, or with respect to, such Disclosure Material, is
with respect to, or arises out of or is based upon an untrue statement or
omission of a material fact with respect to, the information regarding the
Mortgage Loans, the related Mortgagors, the related Mortgaged Properties and/or
the Seller set forth in the Specified Portions of each of the Prospectus
Supplement, the Preliminary Prospectus Supplement, the Preliminary Memorandum
and the Memorandum, (III) any such untrue statement or alleged untrue statement
or omission or alleged omission occurring in, or with respect to, such
Disclosure Material, arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 3 hereof or (IV) any such untrue statement or alleged untrue statement
or omission or alleged omission occurring in, or with respect to, such
Disclosure Material, arises out of or is based upon any other written
information concerning the characteristics of the Mortgage Loans, the related
Mortgagors or the related Mortgaged Properties furnished to the Purchaser, the
Underwriters or the Initial Purchasers by the Seller; provided, that the
indemnification provided by this Section 7 shall not apply to the extent that
such untrue statement or omission of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement or the Preliminary Prospectus Supplement to
the extent such information was not materially incorrect in the Data File or
such Annex A, as applicable, including without limitation the aggregation of
such information with comparable information relating to the Other Mortgage
Loans. Notwithstanding the foregoing, the indemnification provided in this
Section 7(a) shall not inure to the benefit of any Underwriter or Initial
Purchasers (or to the benefit of any person controlling such Underwriter or
Initial Purchasers) from whom the person asserting claims giving rise to any
such losses, claims, damages, expenses or liabilities purchased Certificates if
(x) the subject untrue statement or omission or alleged untrue statement or
omission made in any Disclosure Material (exclusive of the Prospectus or any
corrected or amended Prospectus or the Memorandum or any corrected or amended
Memorandum) is eliminated or remedied in the Prospectus or the Memorandum or,
with respect to any Time of Sale Information only, by the delivery of a
Corrected Free Writing Prospectus prior to the Time of Sale (in each case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus, Memorandum or Corrected Free Writing Prospectus (in each case, as
corrected or amended, if applicable), as applicable, shall not have been sent to
such person at or prior to the Time of Sale of such Certificates, and (z) in the
case of a corrected or amended Prospectus, Memorandum or Corrected Free Writing
Prospectus, such Underwriter or Initial Purchasers received electronically or in
writing notice of such untrue statement or omission and updated information
concerning the untrue statement or omission at least one Business Day prior to
the Time of Sale. The Seller shall, subject to clause (c) below, reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-127668 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated February
24, 2006, as supplemented by the prospectus supplement dated February 24, 2006
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the free writing
prospectus dated February 13, 2006 consisting of the preliminary free writing
prospectus, including the base prospectus, dated February , 2006 attached
thereto, as supplemented and corrected by that certain free writing prospectus
dated February 21, 2006, as further supplemented by that certain free writing
prospectus dated February 23, 2006; "Preliminary Memorandum" shall mean the
preliminary private placement memorandum dated February 21, 2006, relating to
the Non-Registered Certificates, including all annexes thereto; "Memorandum"
shall mean the private placement memorandum dated February 24, 2006, relating to
the Non-Registered Certificates, including all exhibits thereto; "Registered
Certificates" shall mean the Class A-1, Class A-2, Class A-3, Class A-PB, Class
A-4, Class A-5, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates; "Non-Registered Certificates" shall mean the
Certificates other than the Registered Certificates; "Diskette" shall mean the
diskette or compact disc attached to each of the Prospectus, the Preliminary
Prospectus Supplement and the Memorandum; and "Data File" shall mean the
compilation of information and data regarding the Mortgage Loans covered by the
Agreed Upon Procedures Letters dated March 7, 2006 and rendered by KPMG LLP (a
"hard copy" of which Data File was initialed on behalf of the Seller and the
Purchaser). "Free Writing Prospectus" shall mean a "free writing prospectus" as
such term is defined pursuant to Rule 405 under the 1933 Act. "Corrected Free
Writing Prospectus" shall mean a Free Writing Prospectus that corrects any
previous Free Writing Prospectus prepared by or on behalf of any Underwriter and
delivered to any purchaser that contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading. "Time of Sale" shall mean the time at which sales to
investors of the Certificates were first made as determined in accordance with
Rule 159 of the 1933 Act. "Time of Sale Information" shall mean each free
writing prospectus listed on Exhibit B hereto. "Issuer Information" shall have
the meaning given to such term in Rule 433(h) under the 1933 Act (as discussed
by the SEC in footnote 271 of the Commission's Securities Offering Reform
Release No. 33--8591). "Regulation AB" shall have the meaning as defined in
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Secs.229.1100-229.1123 of the 1933 Act, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Securities and Exchange Commission (the "Commission") in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed.
Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may
be provided by the Commission or its staff from time to time.
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchasers, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchasers shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchasers with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchasers within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or
Initial Purchasers' officers and directors, shall have the same rights to
contribution as such Underwriter or Initial Purchaser, as the case may be, and
each director of the Seller and each person, if any who controls the Seller
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchasers, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchasers, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchasers and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Nomura Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus, Term Sheet, Preliminary Prospectus
Supplement, each other Free Writing Prospectus, Preliminary Memorandum and
Memorandum relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iv) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (v) the fees charged by the Rating Agencies to rate
the Certificates so rated; (vi) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the
Certificates included in any Free Writing Prospectus, the Prospectus and the
Memorandum, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters or Initial Purchasers; provided, however, Seller shall pay (or
shall reimburse the Purchaser to the extent that the Purchaser has paid) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof with respect to the Seller's Mortgage
Loans. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 17. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters and the Initial Purchasers (each as intended third
party beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, the Initial Purchasers and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
NOMURA CREDIT & CAPITAL, INC.
By: /s/ N. Xxxxx XxXxxxx
------------------------------------
Name: N. Xxxxx XxXxxxx
Title: Managing Director
Address for Notices:
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx, XX
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx, XX
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule I, the phrases "to the knowledge of
the Seller" or "to the Seller's knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. Also, for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. Upon 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 such Mortgage Loan
(other than those rights to servicing and related compensation as
reflected in the Mortgage Loan Schedule) free and clear of any pledge,
lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is a legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an Assignment of Leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums or
yield maintenance charges, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a) the lien
of current real property taxes, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of the foregoing, no representation
is made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan, there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
comprehensive general liability insurance against claims for personal and
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property in an amount customarily required by prudent
commercial mortgage lenders, but not less than $1 million. An
architectural or engineering consultant has performed an analysis of each
of the Mortgaged Properties located in seismic zone 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475-year lookback with a 10% probability of exceedance
in a 50-year period. If the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained by an insurer
rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or Fitch. If the Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina, such
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged
Property. Such insurance is required by the Mortgage or related Mortgage
Loan documents and was in full force and effect with respect to each
related Mortgaged Property at origination and to the knowledge of the
Seller, all insurance coverage required under each Mortgage or related
Mortgage Loan documents is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
related Mortgage Loan documents, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property with mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan and accrued interest thereon. To
the Seller's actual knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required. The insurance policies contain a standard mortgagee clause
naming the originator of the related Mortgage Loan, its successors and
assigns as loss payees in the case of property insurance policies and
additional insureds in the case of liability insurance policies and
provide that they are not terminable and may not be reduced without 30
days prior written notice to the mortgagee (or, with respect to
non-payment of premiums, 10 days prior written notice to the mortgagee) or
such lesser period as prescribed by applicable law. Each Mortgage or
related Mortgage Loan documents require that the Mortgagor maintain
insurance as described above or permits the mortgagee to require insurance
as described above, and permits the mortgagee to purchase such insurance
at the Mortgagor's expense if the Mortgagor fails to do so. Additionally,
for any Mortgage Loan having an unpaid principal balance equal to or
greater than $15,000,000, the insurer has a claims paying ability rating
from S&P or Fitch of not less than "A-" (or the equivalent) or A.M. Best
of not less than "A-:V" (or the equivalent).
14. (A) Other than payments due but not yet 30 days or more delinquent, there
is no material default, breach, violation or event of acceleration
existing under the related Mortgage or the related Mortgage Note, and to
the Seller's actual knowledge no event (other than payments due but not
yet delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration, provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II, and (B) the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and no such waiver has
been granted since the later of: (a) the date upon which the due diligence
file related to the applicable Mortgage Loan was delivered to American
Capital Strategies, Ltd., or an affiliate, or (b) the date of the
origination of such Mortgage Loan, and pursuant to the terms of the
related Mortgage or the related Mortgage Note and other documents in the
related Mortgage File no Person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage or related Mortgage Loan documents do not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation except as expressly described in such
Mortgage or related Mortgage Loan documents.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan and if operated in accordance with Treasury Regulations
Section 1.856-6, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow of 100% or more of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
Mortgagor has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the Mortgagor has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier or insurance broker issuing such
policy prior to the issuance of such policy. The Mortgage Loan documents
require the Mortgagor to comply with all applicable environmental laws and
each Mortgagor has agreed to indemnify the mortgagee for any losses
resulting from any material, adverse environmental condition or failure of
the Mortgagor to abide by such laws or has provided environmental
insurance.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, redemption, liquidation or similar law affecting
the right of creditors and the application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except in respect to each Co-Lender
Loan) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. The Mortgage or related Mortgage Loan documents contain a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the prior written
consent of the holder of the Mortgage, either the related Mortgaged
Property, or any equity interest in the related Mortgagor, is directly or
indirectly transferred, sold or pledged, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest (as such term is defined in the related Mortgage Loan documents)
in the Mortgagor, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to Crossed
Loans or multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan (such as
pledges of ownership interests that do not result in a change of control).
The Mortgage or related Mortgage Loan documents require the Mortgagor to
pay all reasonable fees and expenses associated with securing the consents
or approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to American Capital Strategies, Ltd., or an
affiliate.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage. The terms of the related Mortgage or related Mortgage Loan
documents do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor of not less than 125% of the related
allocated loan amount of such Mortgaged Property, (b) upon payment in full
of such Mortgage Loan, (c) upon defeasance permitted under the terms of
such Mortgage Loan by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities", as defined in the Investment Company Act of 1940, as amended,
sufficient to pay the Mortgage Loan in accordance with its terms, (d) upon
substitution of a replacement property with respect to such Mortgage Loan
as set forth on Schedule 26, (e) where release is conditional upon the
satisfaction of certain objective underwriting and legal requirements, the
satisfaction of which would be acceptable to a reasonably prudent
commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property
or (f) releases of unimproved out-parcels or other portions of the
Mortgaged Property which will not have a material adverse effect on the
underwritten value of the security for the Mortgage Loan and which were
not afforded any value in the appraisal obtained at the origination of the
Mortgage Loan.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws constitutes a legal
non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts customarily required by
prudent commercial mortgage lenders, or such non-conformity does not
materially and adversely affect the use, operation or value of the
Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or, if so located, the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect in an amount no less than the lesser of (i) the original
principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the Mortgagor to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor who is a natural person
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
42. With respect to such Mortgage Loan, any Prepayment Premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. 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.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the Mortgage Loan
documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. Each Mortgage or related Mortgage Loan documents require the Mortgagor
upon request to provide the owner or holder of the Mortgage with quarterly
(except for some Mortgage Loans with an original principal balance less
than $5,000,000) and annual operating statements (or a balance sheet and
statement of income and expenses), rent rolls (if there is more than one
tenant) and related information, which annual financial statements for all
Mortgage Loans with an outstanding principal balance greater than
$20,000,000 are required to be audited by an independent certified public
accountant.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to (i) or (ii), to the extent required by
such policy or to the extent the failure to make any such disclosure
or deliver any such report would materially and adversely affect the
Mortgagor's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect;
(d) such insurance has a term of at least five years beyond the maturity
date (or the Anticipated Repayment Date for ARD Loans) of such
Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment for lead
based paint ("LBP") (in the case of a multifamily property built
prior to 1978), asbestos containing materials ("ACM") (in the case
of any property built prior to 1985) and radon gas ("RG") (in the
case of a multifamily property) at such Mortgaged Property and (ii)
if such report disclosed the existence of a material and adverse
LBP, ACM or RG environmental condition or circumstance affecting
such Mortgaged Property, then, except as otherwise described on
Schedule II, (A) the related Mortgagor was required to remediate
such condition or circumstance prior to the closing of the subject
Mortgage Loan, or (B) the related Mortgagor was required to provide
additional security reasonably estimated to be adequate to cure such
condition or circumstance, or (C) such report did not recommend any
action requiring the expenditure of any material funds and the
related Mortgage Loan documents require the related Mortgagor to
establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan;
and
(f) rights under such policy inure to the benefit of the Purchaser.
53. Each Mortgage Loan is secured by the fee interest in the related Mortgaged
Property, except with respect to loan number 149 listed on the Mortgage
Loan Schedule, which Mortgage Loan is secured by the interest of the
related Mortgagor as a lessee under a ground lease of a Mortgaged Property
(a "Ground Lease") (the term Ground Lease shall mean such ground lease,
all written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the Mortgagor's
interest is a ground subleasehold, shall also include not only such ground
sublease but also the related ground lease), but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent
of the lessor thereunder is required, it has been obtained prior to
the Closing Date, and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns, in a
manner that would materially adversely affect the security provided
by the related Mortgage; and there has been no material change in
the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related
Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Title Exceptions;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
mortgagee and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Cut-Off Date) and, in
the event that it is so assigned, is further assignable by the
mortgagee and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor (or, if such consent
is required, it has been obtained prior to the Cut-Off Date);
(d) As of the Closing Date such Ground Lease is in full force and
effect, and the Seller has not received notice (nor is the Seller
otherwise aware) that any default has occurred under such Ground
Lease as of the Cut-Off Date;
(e) Seller or its agent has provided the lessor under the Ground Lease
with notice of its lien, and such Ground Lease requires the lessor
to give notice of any default by the lessee to the mortgagee, and
such Ground Lease, further provides that no notice of termination
given under such Ground Lease is effective against such mortgagee
unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity to cure any default under such Ground Lease (including
where necessary, sufficient time to gain possession of the interest
of the lessee under the Ground Lease), which is curable after the
receipt of written notice of any such default, before the lessor
thereunder may terminate such Ground Lease, and all of the rights of
the Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised by or
on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or more optional
renewal terms, which, under all circumstances, may be exercised, and
will be enforceable, by the Seller, its successors or assigns) which
extends not less than 10 years beyond the amortization term of the
related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
the mortgagee under such Mortgage Loan upon termination of such
Ground Lease for any reason, including rejection of such Ground
Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award will
be applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee under such
Mortgage Loan or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground
Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
SCHEDULE II
WBCMT 2006 C-23
SCHEDULE OF EXCEPTIONS TO REPRESENTATION AND WARRANTIES
Representation #4
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Alondra, Xxxxxxx At closing a portion of the loan
Stop & Shop, Belmar, proceeds were escrowed to be
Buckeye Marketplace, disbursed upon satisfying certain
Cedar Breaks criteria outlined in the loan
Village, Haven documents.
Village Center,
Orchid Lake, Rave
Theater, Shoppes at
Zion, Canyon Springs
Representation #11
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Haven Village, Wall The property is currently
Street Plaza undergoing an expansion and
renovation.
Northwood Crossings McDonald's, which is on a ground
lease, plans to reconstruct its
premises.
Xxxxxxx Stop & Shop, An immediate repair reserve was
Broadway Commons, not collected at closing.
Giant Eagle,
Mountain View
Shopping Center,
Northwood Crossings,
Rave Theater, Royal
Oaks II, Stoney
Creek, The Orchard,
Travelers Office
Building, Wild Oats
Market, Haven
Village, Victoria's
Secret
Representation #13
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Sorrento Tech Terrorism insurance coverage is
capped at $0.10 per $100 of
insurable value
Belmar Terrorism insurance coverage is
capped at the lessor of 200% of
the previous year's premium for
all-risk coverage or 500% of the
premium charged for such coverage
for the first year of the loan.
Lexington Club Terrorism insurance coverage is
limited to $2,500,000 per
occurrence.
Xxxxxxx Stop & Shop, Tenant may self insure.
Copelands Sport, CVS
Pharmacy_Algonac,
Giant Eagle -
Columbus, Travelers
Office Bldg,
Victoria's Secret,
Wild Oats Market
Xxx Xxxx MHP Windstorm insurance was not
available and was not obtained.
Borrower is recourse for any
repairs to the portable building
(MHP office) and the masonry
buildings that are not covered by
insurance. Additionally, the
Borrower covenanted to obtain
windstorm coverage upon each
policy renewal if available.
Broadway Commons The seismic report concluded a PML
in excess of 20%. Earthquake
Insurance is limited to $5 MM in
coverage.
Xxxxxxx Stop & Shop, If any of the policies of
Broadway Commons, insurance contain an exclusion
Giant Eagle, from coverage for acts of
Mountain View terrorism, Mortgagor shall not be
Shopping Center, required to obtain such coverage
Northwood Crossings, provided (I) an Inland entity
Rave Theater, Royal executes a guaranty, in form and
Oaks II, Stoney substance satisfactory to Lender,
Creek, The Orchard, guaranteeing in the event of any
Travelers Office act of terrorism, payment to
Building, Wild Oats Lender of any sums that would have
Market been payable to Lender under such
coverage (which shall be applied
by Lender in accordance with 6.4
hereof), and (II) the Inland
entity maintains a net worth of at
least $300,000,000 (as determined
by such entity's most recent
audited financial statements),
such entity maintains a direct or
indirect ownership interest in
Mortgagor, and the aggregate loan
to value ratio (as determined by
Lender) ("LTV") for all properties
on which such entity has a direct
or indirect ownership interest
shall not exceed 60%, however, the
Inland entity may exceed the 60%
LTV for a period not to exceed six
(6) months out of any twelve (12)
month period either (1) during the
time period when the Inland entity
is offering securities to the
public or 2) when in the business
judgment of the Inland entity,
exceeding an LTV of 60% is
necessary given existing
circumstances of the credit
environment, but in no event shall
the LTV exceed 65% if the Inland
entity maintains a net worth
greater than or equal to
$300,000,000, but less than
$400,000,000, or 70% if the Inland
entity maintains a net worth of at
least $400,000,000.
Representation #19
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxx, Only the mortgagor is liable for
Xxxxxxx Stop & Shop, the environmental covenants.
Broadway Commons,
Giant Eagle,
Mountain View
Shopping Center,
Northwood Crossings,
Rave Theater, Royal
Oaks II, Stoney
Creek, The Orchard,
Travelers Office
Building, Wild Oats
Market
Clay Terrace There is no entity or warm body on
the carveouts.
Ranchero There is no entity or warm body on
the carveouts other than the
environmental covenants, for which
the mortgagor is liable.
Hattiesburg, Liability for each tenant in
American Way, common is limited to their
Brookwood, Bullhead, contribution.
Xxxxxxx Village,
Northwest, Downtown
Center, Broadway
Commons, Villa Medici
Hidden Village Liability for each tenant in
common is limited to their
contribution. Additionally, with
respect to the bankruptcy
carveout, each guarantor is fully
liable only if its specific
borrower causes the property to
become an asset in a bankruptcy
proceeding.
Broadway Medical Liability for each tenant in
common is limited to their
contribution. Additionally,
guarantors are liable to the
extent the actions or inactions of
guarantor and/or the borrower
controlled by the guarantor caused
the carveout event, except that X.
Xxxxxxx Xxxx and Xxxxxx Xxxxxxx
are jointly and severally liable
for all actions of all borrowers.
Representation #23
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Spanish Creek, Subordinate mezzanine financing is
Spanish Oaks permitted subject to a 1.20x1.00
DSCR, 80% LTV and receipt of an
intercreditor and standstill
agreement.
Greens at Forest Park Subordinate secured and mezzanine
financing is permitted subject to
a 1.20x1.00 DSCR, 80% LTV and
receipt of an intercreditor and
standstill agreement.
Belmar Following the release of the
Holdback Reserve, subordinate
mezzanine financing is permitted
subject to a 1.20x1.00 DSCR, 80%
LTV and receipt of an
intercreditor and standstill
agreement.
Hattiesburg, Hidden Transfers of interest in Mortgagor
Village, American are permitted to any entity that
Way, Broadway is party to or will be party to
Medical, Brookwood, the related TIC Agreement.
Bullhead, Xxxxxxx
Village, Northwest,
Downtown Center,
Broadway Commons
Xxxxxxx Stop & Shop, A transfer does not include a) any
Broadway Commons, issuance, sale or transfer of
Giant Eagle, interest in/to the REIT, a wholly
Mountain View owned subsidiary of the REIT, or
Shopping Center, any other reit sponsored by Inland
Northwood Crossings, American Real Estate Trust, Inc.
Rave Theater, Royal or other entity created through
Oaks II, Stoney merger b) transfer by devise or
Creek, The Orchard, descent or by operation of law
Travelers Office upon the death of a member of
Building, Wild Oats Mortgagor, c) a transfer to a
Market transferee in which the sponsor or
a directly or indirectly owned
affiliate owns at least 20% of the
transferee and is the managing
entity and d) a sale, transfer or
hypothecation of a membership
interest in Mortgagor by the
current member(s) to an immediate
family member of such member.
After 12 months of loan closing,
Mortgagor may transfer greater
than 49% of the direct or indirect
interests in the Mortgagor,
provided that the transfer is to a
Qualified Entity. A Qualified
Entity is an entity with x) a net
worth of $200,000,000 y)
sufficient experience as
determined by Lender, and z) which
owns or manages retail properties
containing at least 1,000,000
square feet of gross leasable area.
Bullhead Square Lender shall consent to a transfer
of the property in its entirety to
Family Tree Ventures, LLC subject
to various conditions as outline
in the related mortgage documents.
A-1 Self Storage Managing interests are permitted
to be transferred so long as such
interests are non-managing
interests upon and subsequent to
such transfer.
Summit Terrace Wachovia Bank, National
Association, or a wholly owned
subsidiary thereof, is approved as
a replacement general partner
having management control should
the limited partner elect to
exercise the related provisions of
the partnership agreement.
Sorrento Tech Interests in the Borrower are
freely transferable to one or more
real estate investment trusts
without consent so long as,
following such transfer, those
persons responsible for the
management and control of the
property are unchanged or any
replacement manager is approved by
Lender.
Representation #26
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Lender has pre-approved the release of
Clay Terrace air-rights above the mortgaged property for
purposes of constructing condominiums subject
to lender's approval of adequate security being
posted prior to commencement of construction
and satisfactory review of other required
agreements (condo docs, easements, etc).
Additionally, provided no Event of Default
occurs, the Borrower may without the consent of
the Lender:
i. Make transfers of immaterial or
non-income producing portions of the property
to any federal, state or local government or
any political subdivision thereof in connection
with takings or condemnations of any portion of
the Property for dedication or public use.
ii. Make transfers of non-income producing
portions of the property (by sale, ground
lease, sublease or other conveyance of any
interest) to third parties, including, without
limitation, owners of out parcels, department
store pads, pads for office buildings, hotels
or other properties for the purpose of erecting
and operating additional structures or parking
facilities whose use is integrated and
consistent with the use of the property.
iii. Dedicate portions of the property or
grant easements, restrictions, covenants,
reservations and rights of way in the ordinary
course of business for traffic circulation,
ingress, egress, parking, access, utilities
lines or for other similar purposes;
provided, however, it shall be a condition to
any of the transfers in (ii) and (iii) above
that no transfer, conveyance or other
encumbrance shall materially impair the utility
or operation of the property and no transfer,
conveyance or other encumbrance shall
materially adversely affect the value of the
property, taken as a whole.
Shoppes at Zion Within 60 days of Loan closing, but no later
than March 31, 2006, Lender will permit the
bifurcation of the Loan and a separation of
Property collateral into two parts as follows:
1) a $1,100,000 loan secured by the Starbucks
and Sharky's pad comprising 3,971 square feet
of space (the "Release Collateral"), and 2) a
$22,000,000 loan secured by the balance 118,667
square feet of space (the "Remaining
Collateral"). The bifurcation of the loan and
collateral release is predicated upon the
following Release Conditions: (i) no Event of
Default; (ii) Borrower shall have provided
Lender with evidence that the Remaining
Collateral is a distinct tax lot and legal
parcel separate from the Release Parcel; (iii)
concurrently with Lender's release of the
Release Parcel, Borrower shall transfer fee
title to the Release Parcel to an individual or
entity other than Borrower; (iv) the Borrower,
Guarantors and entity documentation for the
Release Parcel must be pre-approved by Lender
prior to Loan closing; (v) Borrower, at its
sole cost and expense, shall have delivered to
Lender one or more endorsements to the
mortgagee policy of title insurance delivered
to Lender on the date hereof insuring that,
after giving effect to such release, (A) the
lien created hereby and insured under such
title policy is a first priority lien on both
the Release Parcel and the Remaining Collateral
subject only to the permitted exceptions, and
(B) such title policy is in full force and
effect with respect to both the Release Parcel
and the Remaining Collateral and unaffected by
such release; (vi) all requirements under all
laws, statutes, rules and regulations
(including, without limitation, all zoning and
subdivision laws, setback requirements,
sideline requirements, height limits, floor
area ratio requirements, parking ratio
requirements, use requirements, building and
fire code requirements, environmental
requirements and wetland requirements)
applicable to the Property necessary to
accomplish the transfer of the Release Parcel
shall have been fulfilled, and evidence thereof
has been delivered to the Lender; (vii) as a
result of the subdivision, the Release Parcel
and the Remaining Collateral will not be in
violation of any applicable law, statute, rule
or regulation (including, without limitation,
all zoning and subdivision laws, setback
requirements, sideline requirements, height
limits, floor area ratio requirements, parking
ratio requirements, use requirements, building
and fire code requirements, environmental
requirements and wetland requirements) and all
necessary variances, if any, shall have been
obtained and evidence thereof has been
delivered to the Lender; (viii) Borrower shall
have paid all of Lender's costs and expenses,
including, without limitation, reasonable
attorneys' fees and expenses, in connection
with the release of the Release Parcel; (ix)
there shall have been no development,
construction, additions, alterations or any
other improvements made to the Release Parcel
prior to the Release Date; and (x) Borrower
shall have entered into and recorded
appropriate easement agreements, which shall,
without limitation, provide for ingress and
egress to and from the Release Parcel and the
Remaining Collateral and, if applicable,
parking on the Release Parcel, which rights
shall be appurtenant to the Remaining
Collateral.
Stop and Shop Borrower may obtain a release of one or more
currently unimproved out parcels provided
certain conditions are met in the related loan
documents.
Bluegrass Manor, Properties may be released from the sub-pool
Colonial Ridge, two years from securitization based on final
Xxxxxxx Xxxx, allocated loan amounts subject to certain
Montana Valley, conditions including 110% defeasance and
Romaine Court, maintaining a 1.20x DSCR and 80% LTV on the
Biltmore, remaining properties in that sub-pool or 100%
College Xxxxx, defeasance and maintaining a 1.25x DSCR and 75%
Xxxxxxx Lake LTV on the remaining properties in that
Village, sub-pool.
Lake of the
Xxxxx, Properties may be released from the sub-pool
Parklane two years from closing, pursuant to an "Arms
Length Transaction", with no event of default,
so long as the remaining properties maintain
not less than a 1.20x DSCR and LTV of greater
than 80%, subject to a Right to Transfer
provision within the loan documents.
Columbine Plaza, Loans may be released from the
Marina Pointe cross-collateralization after the end of the
Shopping Center, lockout period subject to certain conditions
Xxxxxxx including 120% defeasance, subject to
Shopping maintaining a 1.25x DSCR on the remaining
Center, properties.
Marketplace at
Xxx Xxxxx Subject to satisfaction on all properties,
Loans may also be released from the
cross-collateralization after the Earnout
Reserve has been funded, subject to a 1.25x
DSCR on all properties, based on in-place
income (counting any tenant with a scheduled
expiration in the next 6 months as vacant),
reconciled 2004/2005 reimbursement income and
normalized trailing twelve month expenses (4%
management fee, TI/LC and Replacement Reserves
will be equal to the higher of the ongoing
collection amounts or $1.00 psf and $0.15psf,
respectively).
Blackhawk Place, Loans may be released from the
Coldwater Park, cross-collateralization after the end of the
Xxxxxxxxx Court, lockout period subject to 110% defeasance,
Xxxxxx Xxxx subject to maintaining a 1.20x DSCR and 80% LTV
South, on the remaining properties.
Natick Park
South, Xxxxxxx
Place, Mammoth
Park Towers
Rave Theater may be released from the cross at
Rave Theater, 100% if the loan is being paid off.
Mountain View Additionally, Borrower has the right to
substitute up to two properties, provided that
a) no such substitution may occur after the
Anticipated Repayment Date, and b) such
substitution shall require that i) the value of
the replacement property is not less than the
value of the substituted property; ii) the
aggregate DSCR (including the replacement
property and excluding the substituted
property) shall not be less than the DSCR prior
to substitution; iii) the NOI of the
replacement property shall not show a downward
trend over the past three years; iv) the NOI
and DSCR for the replacement property shall not
be less than the NOI and DSCR for the 12 months
preceding the substitution for the substituted
property; v) tenants of the replacement
property shall have comparable credit quality
and financial strength (as determined by
Lender); vi) all required due diligence items
shall be received and approved by Lender; and
vii) Borrower shall pay a fee in the amount of
1% of the outstanding loan balance.
Borrower has the right to substitute up to two
Northwood properties, provided that a) no such
Crossings substitution may occur after the Anticipated
Repayment Date, and b) such substitution shall
require that i) the value of the replacement
property is not less than the value of the
substituted property; ii) the aggregate DSCR
(including the replacement property and
excluding the substituted property) shall not
be less than the DSCR prior to substitution;
iii) the NOI of the replacement property shall
not show a downward trend over the past three
years; iv) the NOI and DSCR for the replacement
property shall not be less than the NOI and
DSCR for the 12 months preceding the
substitution for the substituted property; v)
tenants of the replacement property shall have
comparable credit quality and financial
strength (as determined by Lender); vi) all
required due diligence items shall be received
and approved by Lender; and vii) Borrower shall
pay a fee in the amount of 1% of the
outstanding loan balance.
Representation #27
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Four additional parking spaces need to be
Evergreen striped. An escrow was established for this
Storage work. Borrower provided a carveout for certain
zoning or code violations described in such
notice dated August 3, 1999.
The property currently subject to a several
Xxxxxxx Lakes non-conforming setback violations (mostly minor
but one of 20 feet) and a minor density
violation. The Borrower and indemnitor joined
in a recourse carveout to cover any related
losses until an acceptable variance is
provided. According to PZR, the municipality
has preliminarily indicated its support for the
issuance of the variance.
The property currently subject to a several
Lake of the non-conforming setback violations. The Borrower
Xxxxx and indemnitor joined in a recourse carveout to
cover any related losses until an acceptable
variance is provided. According to PZR, the
municipality has preliminarily indicated its
support for the issuance of the variance.
The garage and mobile home park office encroach
Xxx Xxxx onto setbacks. Law and Ordinance insurance was
not obtained as this is a portable building and
the value of the improvements is not material.
The property does not conform with zoning
Balboa Court because one unit is not permitted. Lender
excluded income attributed to one unit and
obtained law and ordinance insurance.
Certificates of occupancy were not available.
Xxxxxxxx Sports The city has records that one was issued and
has been subsequently lost or misplaced.
Representation #28
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
The Orchard The property does not consist of
one or more separate tax lots.
Borrower has covenanted to use
reasonable efforts to cause the
property to constitute one or more
separate tax lots. Inland Western
Retail Real Estate Trust, Inc.
indemnified Lender for any failure
to pay taxes, liens, etc. until
the lots are separated.
Four additional parking spaces
Evergreen Storage need to be striped. An escrow was
established for this work.
Borrower provided a carveout for
certain zoning or code violations
described in such notice dated
August 3, 1999.
The property currently subject to
Xxxxxxx Lakes a several non-conforming setback
violations (mostly minor but one
of 20 feet) and a minor density
violation. The Borrower and
indemnitor joined in a recourse
carveout to cover any related
losses until an acceptable
variance is provided. According to
PZR, the municipality has
preliminarily indicated its
support for the issuance of the
variance.
The property currently subject to
Lake of the Xxxxx a several non-conforming setback
violations. The Borrower and
indemnitor joined in a recourse
carveout to cover any related
losses until an acceptable
variance is provided. According to
PZR, the municipality has
preliminarily indicated its
support for the issuance of the
variance.
The garage and mobile home park
Xxx Xxxx office encroach onto setbacks. Law
and Ordinance insurance was not
obtained as this is a portable
building and the value of the
improvements is not material.
Representation #29
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
The mortgage does not specifically require the
385 Prospect successor Borrower to be an SPE but does allow
Place the Lender to designate such successor entity.
A non-consolidation opinion was not obtained.
Ranchero
Representation #31
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Bluegrass Manor, The sponsor of the related
Colonial Ridge, mortgagors is being sued for the
Xxxxxxx Xxxx, actual economic damages of the
Montana Valley, mortgagee in connection with
Romaine Court, incomplete renovations and
Biltmore, termination of leases at a
College Xxxxx, property.
Xxxxxxx Lake Village,
Lake of the Xxxxx,
Parklane
Lexington Club There is a Proposed Order in favor
of Village Construction Company,
Inc. in the amount of $35,063.03.
The Borrower posed a surety bond
to cover this amount.
Representation #37
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Four additional parking spaces need to be
Evergreen striped. An escrow was established for this
Storage work. Borrower provided a carveout for certain
zoning or code violations described in such
notice dated August 3, 1999.
The property currently subject to a several
Xxxxxxx Lakes non-conforming setback violations (mostly minor
but one of 20 feet) and a minor density
violation. The Borrower and indemnitor joined
in a recourse carveout to cover any related
losses until an acceptable variance is
provided. According to PZR, the municipality
has preliminarily indicated its support for the
issuance of the variance.
The property currently subject to a several
Lake of the non-conforming setback violations. The Borrower
Xxxxx and indemnitor joined in a recourse carveout to
cover any related losses until an acceptable
variance is provided. According to PZR, the
municipality has preliminarily indicated its
support for the issuance of the variance.
The garage and mobile home park office encroach
Xxx Xxxx onto setbacks. Law and Ordinance insurance was
not obtained as this is a portable building and
the value of the improvements is not material.
Representation #40
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxx, Only the mortgagor is liable for
Xxxxxxx Stop & Shop, the environmental covenants.
Broadway Commons,
Giant Eagle,
Mountain View
Shopping Center,
Northwood Crossings,
Rave Theater, Royal
Oaks II, Stoney
Creek, The Orchard,
Travelers Office
Building, Wild Oats
Market
Clay Terrace There is no entity or warm body on
the carveouts.
Ranchero There is no entity or warm body on
the carveouts other than the
environmental covenants, for which
the mortgagor is liable.
Hattiesburg, Liability for each tenant in
American Way, common is limited to their
Brookwood, Bullhead, contribution.
Xxxxxxx Village,
Northwest, Downtown
Center, Broadway
Commons, Villa Medici
Hidden Village Liability for each tenant in
common is limited to their
contribution. Additionally, with
respect to the bankruptcy
carveout, each guarantor is fully
liable only if its specific
borrower causes the property to
become an asset in a bankruptcy
proceeding.
Broadway Medical Liability for each tenant in
common is limited to their
contribution. Additionally,
guarantors are liable to the
extent the actions or inactions of
guarantor and/or the borrower
controlled by the guarantor caused
the carveout event, except that X.
Xxxxxxx Xxxx and Xxxxxx Xxxxxxx
are jointly and severally liable
for all actions of all borrowers.
Representation #43
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Ranchero Proceeds equal to the loan amount
per pad ($45,500) from subsequent
shareholder sales will be escrowed
in an interest bearing account
with 50% of the escrowed proceeds
applied to reduce principal with
no penalty with the remaining
funds held in escrow and used for
capital improvements or impound
subsidy. Said pay down of
principal will be allowed once
annually on February 11th,
beginning February 11, 2007.
Principal reduction of more than
10% of the loan or a full pay-off
of the loan will be subject to
yield maintenace.
Xxxxxxx Stop and Shop If tenant terminates the lease for
the undeveloped portion of the
property, Borrower shall tender
$1,320,000 plus any other sums due
under the terms of the note to be
used to paydown the loan balance.
Representation #46
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Spanish Creek, Subordinate mezzanine financing is
Spanish Oaks permitted subject to a 1.20x1.00
DSCR, 80% LTV and receipt of an
intercreditor and standstill
agreement.
Greens at Forest Subordinate secured and mezzanine
Xxxxx financing is permitted subject to
a 1.20x1.00 DSCR, 80% LTV and
receipt of an intercreditor and
standstill agreement.
Belmar Following the release of the
Holdback Reserve, subordinate
mezzanine financing is permitted
subject to a 1.20x1.00 DSCR, 80%
LTV and receipt of an
intercreditor and standstill
agreement.
Representation #47
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
The Orchard The property does not consist of
one or more separate tax lots.
Borrower has covenanted to use
reasonable efforts to cause the
property to constitute one or more
separate tax lots. Inland Western
Retail Real Estate Trust, Inc.
indemnified Lender for any failure
to pay taxes, liens, etc. until
the lots are separated.
Representation #50
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Belmar, Clay Audited financial statements are
Terrace, Downtown not required.
Centre, Shoppes at
Zion
Representation #53
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Wall Street Plaza Ground Lease Deals
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan Number Loan Group Number Property Name
-------------------- ----------------- -------------------------------------
5 1 Belmar(1)
6 1 Clay Terrace
18 1 Ranchero Village(2)
31 1 Downtown Centre
36 1 Shoppes at Zion
39 0 Xxxxxxxx Xxxxxxx Xxxxx
49 1 Vineyard Shopping Center
53 1 Rave Theater
00 0 Xxxxx Xxxxxx Xxxxxxxxxx
00 0 Brookwood Commerce Centre
66 1 Mountain Valley Center
68 1 U.S. Bank Building
69 2 Balboa Court
73 2 Montana Valley Apartments
74 1 The Orchard
78 1 Giant Eagle (Columbus, OH)
79 1 Haven Village Center
80 1 Sorrento Tech
83 2 Greens @ Forest Park
89 1 Broadway Commons
00 0 Xxxxxxx Xxxxxxxxxxx
00 0 Bullhead Square
94 1 Northwood Crossings
98 2 Franklin Regency Apts.
99 0 Xxxxxxxx Xxxxx
000 0 Xxxxxxxxx Xxxxxxx
108 1 Mountain View Shopping Center
109 2 Lake of the Xxxxx Apartments
111 2 Blue Grass Manor
115 1 Royal Oaks Village II
116 2 Biltmore
121 0 Xxxxxxx Xxxx Xxxxxxxxxx
000 0 Xxxxxx Xxxxxxx Apts.
125 2 Hunter's Run - Dallas
129 1 Wild Oats Market
131 2 Parklane Apartments
134 1 Xxxxxxx Stop & Shop(4)
135 2 Spanish Creek Apartments
137 2 Lexington Club at Galleria
143 2 Xxxxxxx Lake Village
149 1 Wall Street Plaza-La Jolla
150 1 Marketplace at Xxx Xxxxx(5)
158 2 Colonial Ridge Apartments
164 1 Fairfield Inn & Suites - Xxxxx
166 1 Kent Plaza
169 2 Hidden Village Apartments
170 1 Copelands Sport
173 2 Xxxxxxx Apts.
176 2 Brushwood Apartments
177 1 American Way Plaza
178 2 Orchid Lake
180 1 Xxxxxxx Shopping Center(5)
181 2 Spanish Oaks Apartments
183 1 Grand Oasis MHP
187 1 Travelers Office Xxxx
000 0 Xxxxxxx Xxx
000 0 Xxxxxxx Apartments
196 2 Woodcrest Apartments, IA
201 1 Stoney Creek
203 2 Alondra & Xxxxx Pan Mobile Home Parks
208 1 Quality Inn & Suites - Mt. Pleasant
211 1 Mammoth Park Towers Apts
217 2 Xxxxxxx Place Apts
222 1 Cedar Breaks Village
226 1 Columbine Plaza - Shopping Center(5)
230 1 CVS Pharmacy_Algonac, MI
231 2 Romaine Court Apartments
235 1 Comfort Suites - Boone
236 1 Xxxxx Xxx & Xxxxxx - Xxxxxxx
000 0 College Xxxxx Apartments
253 1 Marina Pointe Shopping Center(5)
261 1 Victoria's Secret
263 1 A-1 Self Storage
272 1 Natick Park South Apts
274 1 Comfort Inn - Lenoir
275 1 Hattiesburg Retail Center
276 2 Xxx Xxxx MHP
284 1 U-Secure Self Storage Facility
285 2 Oak Tree East
292 2 Xxxxxx Xxxx South Apts
294 1 Block Xxxxxx Xxxxx
000 0 Xxxxx Xxxxxxx
297 0 Xxxxxx Xxxxxxx Xxxxxxxxxx
000 0 Xxxxxxx Xxxxxxx
301 2 Blackhawk Place Apartments
302 2 Xxxxxxxxx Court Apartments
304 2 Coldwater Park
Mortgage Loan Number Address City State Zip Code County
-------------------- ------------------------------------ -------------------- ----- -------- ---------------
5 000 X Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Jefferson
6 00000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Xxxxxxxx
18 0000 Xxxxxxxx Xxxx Xxxxx XX 00000 Pinellas
31 000 Xxxxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 San Xxxx Obispo
36 000 Xxxxx Xxx Xxxxxx Xxxxx Xx. Xxxxxx XX 00000 Washington
39 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Alameda
49 0000 Xxxxx Xxxx 0000 Xxx Xxxxxxx XX 00000 Bexar
53 00000 Xxxxxxxx Xxxxxxxx Xxxxxxx XX 00000 Xxxxxx
54 0000 Xxx Xxxxxx Xxxxxxxx Xxxx XX 00000 Xxxxxxx
62 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Maricopa
66 000-000 Xxxxxxxxx Xxxxx Xx Xxxxxxxxx Xxxxx Xxxx XX 00000 King County
68 000 Xxxxx Xxxxxx XX Xxxxxxxxx XX 00000 Olmsted
69 00000-00 Xxxx Xxxxxx Xxxxxxxxxx XX 00000 Los Angeles
73 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
74 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxxx (Xxxxx) XX 00000 Oneida
78 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 Xxxxxxxx Xxxxxx
79 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 San Bernardino
80 00000-00000 Xxxxxx Xxxxxx Xxxx Xxx Xxxxx XX 00000 San Diego
83 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Baltimore City
89 00-00 00xx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Olmsted
92 SWC of Xxxxxx Xx & Xxxx Xxxx Xxxxxxx XX 00000 Maricopa
93 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx Xxxx XX 00000 Mohave
94 0000 XxXxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Tuscaloosa
98 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Los Angeles
99 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Bergen
105 0000-0000 XX Xxxx 000 Xxxxxxxx XX 00000 Xxxxx
108 0000-0000 Xxxxx Xxxxxxx 00 Xxxxxxxxx XX 00000 Flathead
109 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxxxx
111 0000 Xxxx Xxxxx Xxxxxxxx XX 00000 Kenton
115 11687-11693 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxx
116 0000 Xxxxxx Xxxx Xxxxxx XX 00000 Dallas
121 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
123 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx XX 00000 Maricopa
125 0000 Xx. Xxxxxxx Xxxxxx Xxxxxx XX 00000 Dallas
129 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Xxxx
131 0000 Xxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
134 000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Dutchess
135 0000 Xxxxxx Xxxxx Xxxxxx XX 00000 Dallas
137 0000 Xxxxx Xxxx Xxxxxxxxxxxx XX 00000 Dutchess
143 0000 Xxxxxxx Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Hamilton
149 0000 Xxxxxx Xxxxxx Xx Xxxxx XX 00000 San Diego
150 00000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Jefferson
158 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
164 0000 Xxxxxxx Xxxx Xxxx Xxxxx XX 00000 Watauga
166 0000-0000 Xxxxx 0xx Xxxxxx Xxxxxxxxxxx XX 00000 Sangamon
169 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 Clackamas
170 0000 Xxxxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 San Xxxx Obispo
173 0000 X. Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Los Angeles
176 0000 Xxx Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 Daviess
177 0000-0000 Xxxxxxxx Xxx Xxxxxxx XX 00000 Shelby
178 0000 Xxxxxx Xxxxx Xxx Xxxx Xxxxxx XX 00000 Pasco
180 0000-0000 Xxxx Xxxx Xxxx Xxxxxx Xxxxxxxxx XX 00000 Jefferson
181 0000 Xxxx Xxxx Xxx Xxxxxxxxx XX 00000 Tarrant
183 000 X 000 X Xxxx XX 00000 Grand
187 0000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Xxxx
192 0000 X. XX 00 Xxxxx Xxxxx Xxxx XX 00000 Xxxxxxxxxx
195 0000 XX 00xx Xxxxxxx Xxxxxx Xxxx XX 00000 Clay
196 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Linn
201 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxxxx
203 1100 & 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Los Angeles
208 000 Xxxxxxxx Xxxxx Xxxx Xx. Xxxxxxxx XX 00000 Charleston
211 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Los Angeles
217 00000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Los Angeles
222 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxxxx
226 0000-0000 Xxxx Xxx Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Jefferson
230 0000 Xx. Xxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 St. Clair
231 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
235 0000 Xxxxxxx 000 Xxxxx XX 00000 Watauga
236 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Cabarrus
249 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Xxxxxxxx
253 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Jefferson
261 000 Xxxxxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 San Xxxx Obispo
263 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000 El Paso
272 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Los Angeles
274 000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx XX 00000 Xxxxxxxx
275 0000 X.X. Xxxxxxx 00 Xxxxxxxxxxx XX 00000 Xxxxxxx
276 0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Brevard
284 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Davidson
285 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Erath
292 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Los Angeles
294 0000 Xxxxxxxxxx Xxxx Xxxxx XX 00000 Summit
296 0000 Xxxxx Xxxx Xxxxxxxxxxxxx XX 00000 Gwinnett
297 0000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 Autauga
300 0000 Xxxxxxx Xxxx Xxxxxx XX 00000 Xxxxxx
301 00000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000 Los Angeles
302 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Los Angeles
304 0000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Los Angeles
Mortgage Loan Number Cut-Off Date Loan Balance ($) Monthly P&I Payments ($) Grace Days Mortgage Rate (%)
-------------------- ----------------------------- ------------------------ ---------- -----------------
5 132,319,524.04 774,075.96 5.7600%
6 115,000,000.00 IO 5 5.0800%
18 43,000,000.00 249,844.75 5.7100%
31 25,000,000.00 IO 5.7100%
36 23,100,000.00 130,956.43 5.4860%
39 21,000,000.00 125,096.68 5.9400%
49 19,807,821.72 134,320.49 5.2400%
53 17,889,015.00 IO 4.8600%
54 17,730,000.00 108,360.75 6.1800%
62 15,500,000.00 90,060.32 5.7100%
66 14,303,492.85 82,289.87 5.5900%
68 13,968,474.79 81,700.20 5.7500%
69 13,860,000.00 78,087.92 5.4300%
73 13,040,000.00 71,845.91 5.2300%
74 12,987,015.00 IO 5.1000%
78 12,154,118.00 IO 4.7400%
79 11,900,000.00 70,354.97 5.8700%
80 11,800,000.00 68,861.60 5.7500%
83 11,500,000.00 67,769.82 5.8400%
89 11,000,000.00 IO 5.4500%
92 10,800,000.00 58,970.83 5.1500%
93 10,750,000.00 63,075.92 5.8000%
94 10,690,800.00 IO 5.1700%
98 10,474,630.63 58,437.47 5.3200%
99 10,300,000.00 59,781.24 5 5.7000%
105 9,900,000.00 55,406.30 5.3700%
108 9,645,224.00 IO 4.4400%
109 9,642,000.00 53,124.10 5.2300%
111 9,144,000.00 50,380.29 5.2300%
115 8,550,000.00 IO 4.7900%
116 8,509,000.00 46,881.66 5.2300%
121 8,183,000.00 45,085.51 5.2300%
123 8,114,493.44 46,582.07 5.5600%
125 8,000,000.00 45,423.12 5.5000%
129 7,469,000.00 IO 4.6900%
131 7,380,000.00 40,661.26 5.2300%
134 7,348,880.00 IO 4.8100%
135 7,208,161.43 41,204.26 5.5400%
137 6,984,493.32 41,295.87 5.8500%
143 6,480,000.00 35,702.57 5.2300%
149 6,000,000.00 34,520.45 5.6200%
150 5,992,000.00 34,247.83 5.5600%
158 5,600,000.00 30,854.07 5.2300%
164 5,464,946.09 34,113.50 5.6500%
166 5,400,000.00 30,255.28 5.3800%
169 5,345,000.00 30,482.60 5.5400%
170 5,317,769.55 31,210.70 5.7900%
173 5,187,436.12 28,940.46 5.3200%
176 5,120,000.00 30,074.37 5.8100%
177 5,100,000.00 29,503.54 5.6700%
178 5,100,000.00 29,859.48 5.7800%
180 5,048,000.00 28,852.31 5.5600%
181 5,038,230.48 28,800.21 5.5400%
183 5,000,000.00 29,210.41 5.7600%
187 4,864,861.00 IO 4.7000%
192 4,591,704.62 29,189.60 5.8400%
195 4,393,891.99 25,204.01 5.5800%
196 4,381,222.95 25,454.03 5.6700%
201 4,279,121.00 IO 5.0200%
203 4,160,000.00 IO 5.4400%
208 4,087,007.86 25,768.59 5.7400%
211 3,994,447.26 22,912.74 5.5800%
217 3,694,863.72 21,194.28 5.5800%
222 3,510,000.00 19,775.51 5.4300%
226 3,480,000.00 19,780.90 5.5100%
230 3,367,147.11 19,268.89 5.5500%
231 3,360,000.00 18,512.44 5.2300%
235 3,100,000.00 19,315.40 5.6500%
236 3,090,109.66 19,390.06 5.6900%
249 2,735,000.00 15,068.91 5.2300%
253 2,580,000.00 14,665.15 5.5100%
261 2,450,000.00 14,204.29 5.6900%
263 2,396,686.00 13,823.33 5 5.6300%
272 2,147,015.40 12,315.60 5.5800%
274 2,043,495.09 12,871.92 10 5.7300%
275 2,000,000.00 11,773.30 5.8300%
276 2,000,000.00 11,671.46 5.7500%
284 1,845,895.09 10,902.10 5.8400%
285 1,844,345.94 10,973.03 5.9000%
292 1,647,709.50 9,451.50 5.5800%
294 1,557,912.17 9,282.90 5.9300%
296 1,506,097.61 9,561.36 6.5300%
297 1,450,000.00 8,544.89 5.8400%
300 1,052,689.54 6,271.10 5.9200%
301 998,611.82 5,728.18 5.5800%
302 998,611.82 5,728.18 5.5800%
304 699,028.27 4,009.73 5.5800%
Mortgage Loan Number Number of Units Unit of Measure Original Term to Maturity or ARD (Mos.)
-------------------- --------------- --------------- ---------------------------------------
5 813,357 Sq. Ft. 120
6 499,029 Sq. Ft. 120
18 946 Pads 120
31 80,716 Sq. Ft. 120
36 122,667 Sq. Ft. 120
39 101,284 Sq. Ft. 60
49 107,575 Sq. Ft. 120
53 76,172 Sq. Ft. 84
54 166 Units 120
62 209,174 Sq. Ft. 120
66 87,872 Sq. Ft. 120
68 91,974 Sq. Ft. 120
69 150 Units 120
73 319 Units 120
74 163,529 Sq. Ft. 60
78 116,129 Sq. Ft. 84
79 45,634 Sq. Ft. 60
80 63,363 Sq. Ft. 120
83 190 Units 120
89 140,739 Sq. Ft. 120
92 48,171 Sq. Ft. 120
93 180,291 Sq. Ft. 120
94 148,749 Sq. Ft. 00
00 000 Xxxxx 000
00 71,318 Sq. Ft. 120
105 156,657 Sq. Ft. 120
108 106,521 Sq. Ft. 60
109 264 Units 120
111 246 Units 120
115 59,908 Sq. Ft. 84
116 584 Units 120
121 263 Units 120
123 203 Units 60
125 240 Units 120
129 48,835 Sq. Ft. 60
131 150 Units 120
134 66,415 Sq. Ft. 84
135 302 Units 120
137 160 Units 180
143 163 Units 120
149 36,657 Sq. Ft. 120
150 47,606 Sq. Ft. 120
158 142 Units 120
164 100 Rooms 120
166 94,041 Sq. Ft. 120
169 98 Units 120
170 24,694 Sq. Ft. 120
173 62 Units 120
176 172 Units 120
177 104,365 Sq. Ft. 120
178 406 Pads 84
180 44,000 Sq. Ft. 120
181 200 Units 120
183 235 Pads 120
187 50,760 Sq. Ft. 60
192 97 Rooms 120
195 117 Units 120
196 153 Units 120
201 51,091 Sq. Ft. 60
203 96 Pads 60
208 103 Rooms 120
211 24 Units 120
217 43 Units 120
222 22,412 Sq. Ft. 120
226 33,947 Sq. Ft. 120
230 13,013 Sq. Ft. 120
231 96 Units 120
235 96 Rooms 120
236 116 Rooms 120
249 135 Units 120
253 19,550 Sq. Ft. 120
261 4,990 Sq. Ft. 120
263 426 Units 120
272 18 Units 120
274 78 Rooms 120
275 13,550 Sq. Ft. 120
276 83 Pads 84
284 422 Units 120
285 74 Units 120
292 21 Units 120
294 10,081 Sq. Ft. 120
296 13,100 Sq. Ft. 120
297 56 Units 120
300 7,932 Sq. Ft. 120
301 14 Units 120
302 15 Units 120
304 8 Units 120
Mortgage Loan Number Remaining Term to Maturity or ARD (Mos.) Maturity Date or ARD Original Amort Term (Mos.)
-------------------- ---------------------------------------- -------------------- --------------------------
5 119 02/11/16 360
6 115 10/01/15 IO
18 119 02/11/16 360
31 118 01/11/16 IO
36 118 01/11/16 360
39 58 01/11/11 360
49 117 12/11/15 240
53 82 01/11/13 IO
54 119 02/11/16 360
62 117 12/11/15 360
66 117 12/11/15 360
68 118 01/11/16 360
69 119 02/11/16 360
73 116 11/11/15 360
74 57 12/11/10 IO
78 81 12/11/12 IO
79 57 12/11/10 360
80 118 01/11/16 360
83 117 12/11/15 360
89 119 02/11/16 IO
92 118 01/11/16 360
93 118 01/11/16 360
94 59 02/11/11 IO
98 118 01/06/16 360
99 117 12/11/15 360
105 117 12/11/15 360
108 59 02/11/11 IO
109 116 11/11/15 360
111 116 11/11/15 360
115 82 01/11/13 IO
116 116 11/11/15 360
121 116 11/11/15 360
123 56 11/11/10 360
125 119 02/11/16 360
129 58 01/11/11 IO
131 116 11/11/15 360
134 80 11/11/12 IO
135 118 01/11/16 360
137 178 01/11/21 360
143 116 11/11/15 360
149 119 02/11/16 360
150 115 10/11/15 360
158 116 11/11/15 360
164 119 02/01/16 300
166 119 02/11/16 360
169 118 01/11/16 360
170 119 02/11/16 360
173 118 01/06/16 360
176 117 12/11/15 360
177 117 12/11/15 360
178 82 01/11/13 360
180 115 10/11/15 360
181 118 01/11/16 360
183 118 01/11/16 360
187 59 02/11/11 IO
192 119 02/11/16 300
195 119 02/11/16 360
196 116 11/11/15 360
201 57 12/11/10 IO
203 56 11/11/10 IO
208 118 01/11/16 300
211 119 02/06/16 360
217 119 02/06/16 360
222 115 10/11/15 360
226 115 10/11/15 360
230 118 01/11/16 360
231 116 11/11/15 360
235 120 03/01/16 300
236 118 01/01/16 300
249 116 11/11/15 360
253 115 10/11/15 360
261 119 02/11/16 360
263 119 02/05/16 360
272 119 02/06/16 360
274 118 01/01/16 300
275 119 02/11/16 360
276 82 01/11/13 360
284 118 01/11/16 360
285 117 12/11/15 360
292 119 02/06/16 360
294 119 02/11/16 360
296 119 02/11/16 360
297 118 01/11/16 360
300 118 01/11/16 360
301 119 02/06/16 360
302 119 02/06/16 360
304 119 02/06/16 360
Mortgage Loan Number Remaining Amort Term (Mos.) Ground Lease Master Servicing Fee Rate ARD Loan
-------------------- --------------------------- ------------ ------------------------- --------
5 359 Fee 0.02000% N
6 IO Fee 0.02000% N
18 360 Fee 0.02000% N
31 IO Fee 0.02000% N
36 360 Fee 0.02000% N
39 360 Fee 0.02000% N
49 237 Fee 0.02000% N
53 IO Fee 0.02000% N
54 360 Fee 0.02000% N
62 360 Fee 0.02000% N
66 357 Fee 0.02000% N
68 358 Fee 0.02000% N
69 360 Fee 0.06000% N
73 360 Fee 0.06000% N
74 IO Fee 0.02000% N
78 IO Fee 0.02000% Y
79 360 Fee 0.02000% N
80 360 Fee 0.02000% Y
83 360 Fee 0.02000% N
89 IO Fee 0.02000% N
92 360 Fee 0.02000% N
93 360 Fee 0.08000% N
94 IO Fee 0.02000% N
98 358 Fee 0.02000% N
99 360 Fee 0.02000% N
105 360 Fee 0.02000% N
108 IO Fee 0.02000% N
109 360 Fee 0.06000% N
111 360 Fee 0.06000% N
115 IO Fee 0.02000% N
116 360 Fee 0.06000% N
121 360 Fee 0.06000% N
123 356 Fee 0.02000% N
125 360 Fee 0.06000% N
129 IO Fee 0.02000% Y
131 360 Fee 0.06000% N
134 IO Fee 0.02000% Y
135 358 Fee 0.02000% N
137 358 Fee 0.02000% N
143 360 Fee 0.06000% N
149 360 Leasehold 0.02000% N
150 360 Fee 0.06000% N
158 360 Fee 0.06000% N
164 299 Fee 0.04000% N
166 360 Fee 0.03000% N
169 360 Fee 0.02000% N
170 359 Fee 0.02000% Y
173 358 Fee 0.02000% N
176 360 Fee 0.02000% N
177 360 Fee 0.02000% N
178 360 Fee 0.02000% N
180 360 Fee 0.06000% N
181 358 Fee 0.02000% N
183 360 Fee 0.02000% N
187 IO Fee 0.02000% Y
192 299 Fee 0.02000% N
195 359 Fee 0.02000% N
196 356 Fee 0.02000% N
201 IO Fee 0.02000% N
203 IO Fee 0.02000% N
208 298 Fee 0.04000% N
211 359 Fee 0.02000% N
217 359 Fee 0.02000% N
222 360 Fee 0.10000% N
226 360 Fee 0.06000% N
230 358 Fee 0.02000% N
231 360 Fee 0.06000% N
235 300 Fee 0.04000% N
236 298 Fee 0.04000% N
249 360 Fee 0.06000% N
253 360 Fee 0.06000% N
261 360 Fee 0.02000% Y
263 359 Fee 0.02000% N
272 359 Fee 0.02000% N
274 298 Fee 0.04000% N
275 360 Fee 0.02000% N
276 360 Fee 0.02000% N
284 358 Fee 0.02000% N
285 357 Fee 0.02000% N
292 359 Fee 0.02000% N
294 359 Fee 0.02000% N
296 359 Fee 0.02000% N
297 360 Fee 0.02000% N
300 358 Fee 0.08000% N
301 359 Fee 0.02000% N
302 359 Fee 0.02000% N
304 359 Fee 0.02000% N
Mortgage Loan Number Anticipated Repayment Date Additional Interest Rate
-------------------- -------------------------- -----------------------------------------------------------------------
5
6
18
31
36
39
49
53
54
62
66
68
69
73
74
78 12/11/12 Lesser of max allowable by law or 6.74%
79
80 01/11/16 Greater of (i) 7.75% or (ii) the Treasury Rate plus 2.70%
83
89
92
93
94
98
99
105
108
109
111
115
116
121
123
125
129 01/11/11 Lesser of (a) the maximum rate permitted by applicable law or (b) 6.69%
131
134 11/11/12 Lesser of (a) the maximum rate permitted by applicable law or (b) 6.81%
135
137
143
149
150
158
164
166
169
170 02/11/16 Greater of (i) 7.79% or (ii) the Treasury Rate plus 3.35%
173
176
177
178
180
181
183
187 02/11/11 Lesser of (a) the maximum rate permitted by applicable law or (b) 6.70%
192
195
196
201
203
208
211
217
222
226
230
231
235
236
249
253
261 02/11/16 Greater of (i) 7.69% or (ii) the Treasury Rate plus 3.25%
263
272
274
275
276
284
285
292
294
296
297
300
301
302
304
Mortgage Loan Number Loan Originator Environmental Insurance Cross Collateralized and Cross Defaulted Loan Flag
-------------------- --------------- ----------------------- --------------------------------------------------
5 Nomura N
6 Nomura N
18 Nomura N
31 Nomura N
36 Nomura N
39 Nomura N
00 Xxxxxx X
00 Xxxxxx X Xxxxxx Xxxxxxxxx X
54 Nomura N
62 Nomura N
66 Nomura N
68 Nomura N
69 Nomura N
73 Nomura N Multifamily Portfolio A
74 Nomura N
78 Nomura N
79 Nomura N
80 Nomura N
83 Nomura N
89 Nomura N
92 Nomura N
93 Nomura N
94 Nomura N
98 Nomura N
99 Nomura N
105 Nomura N
000 Xxxxxx X Xxxxxx Xxxxxxxxx X
000 Xxxxxx X Xxxxxxxxxxx Xxxxxxxxx X
111 Nomura N Multifamily Portfolio A
115 Nomura N
000 Xxxxxx X Xxxxxxxxxxx Xxxxxxxxx X
121 Nomura N Multifamily Portfolio A
000 Xxxxxx X
125 Nomura N
129 Nomura N
000 Xxxxxx X Xxxxxxxxxxx Xxxxxxxxx X
134 Nomura N
135 Nomura N
137 Nomura N
000 Xxxxxx X Xxxxxxxxxxx Xxxxxxxxx X
149 Nomura N
150 Nomura N Retail Portfolio A
000 Xxxxxx X Multifamily Portfolio A
000 Xxxxxx X
166 Nomura N
169 Nomura N
170 Nomura N
173 Nomura N
176 Nomura N
177 Nomura N
178 Nomura N
180 Nomura N Retail Portfolio A
181 Nomura N
183 Nomura N
187 Nomura N
192 Nomura N
195 Nomura N
196 Nomura N
201 Nomura N
203 Nomura N
208 Nomura N
211 Nomura N Multifamily Portfolio C
217 Nomura N Multifamily Portfolio C
222 Nomura N
226 Nomura N Retail Portfolio A
230 Nomura N
231 Nomura N Multifamily Portfolio A
000 Xxxxxx X
236 Nomura N
000 Xxxxxx X Xxxxxxxxxxx Xxxxxxxxx X
253 Nomura N Retail Portfolio A
261 Nomura N
263 Nomura N
272 Nomura N Multifamily Portfolio C
274 Nomura N
275 Nomura N
276 Nomura N
284 Nomura N
285 Nomura N
292 Nomura N Multifamily Portfolio C
294 Nomura N
296 Nomura N
297 Nomura N
300 Nomura N
301 Nomura N Multifamily Portfolio C
302 Nomura N Multifamily Portfolio C
304 Nomura N Multifamily Portfolio C
Mortgage Loan Number Prepayment Provisions Early Defeasance Secured by LC Interest Accrual Method Lockbox
-------------------- --------------------- ---------------- ------------- ----------------------- ---------
5 Y N N Actual/360 Day 1
6 Y N N Actual/360 Day 1
18 Y N N Actual/360
31 Y N N Actual/360 Day 1
36 Y N N Actual/360 Springing
39 Y N N Actual/360 Day 1
49 Y N N Actual/360
53 N N N 30/360
54 Y N N Actual/360 Day 1
62 Y N N Actual/360
66 Y N N Actual/360
68 Y N N Actual/360 Day 1
69 Y N N Actual/360
73 Y N N Actual/360 Day 1
74 N N N 30/360
78 N N N 30/360 Springing
79 Y N N Actual/360
80 Y N N Actual/360 Day 1
83 Y N N Actual/360
89 N N N 30/360
92 Y N N Actual/360
93 Y N N Actual/360 Day 1
94 N N N 30/360
98 Y N N Actual/360
99 Y N N Actual/360 Day 1
105 Y N Y Actual/360 Day 1
108 N N N 30/360
109 Y N N Actual/360 Day 1
111 Y N N Actual/360 Day 1
115 N N N 30/360
116 Y N N Actual/360 Day 1
121 Y N N Actual/360 Day 1
123 N N N Actual/360
125 Y N N Actual/360
000 X X X 00/000 Xxxxxxxxx
131 Y N N Actual/360 Day 1
000 X X X 00/000 Xxxxxxxxx
135 Y N N Actual/360
137 Y N N Actual/360
143 Y N N Actual/360 Day 1
149 Y N N Actual/360 Day 1
150 N N N Actual/360
158 Y N N Actual/360 Day 1
164 Y N N Actual/360
166 Y N N Actual/360
169 Y N N Actual/360
170 Y N N Actual/360 Day 1
173 Y N N Actual/360
176 Y N N Actual/360
177 Y N N Actual/360 Day 1
178 Y N N Actual/360
180 N N N Actual/360
181 Y N N Actual/360
183 Y N N Actual/360
000 X X X 00/000 Xxxxxxxxx
192 Y N N Actual/360 Day 1
195 Y N N Actual/360
196 Y N N Actual/360
201 N N N 30/360
203 Y N N Actual/360
208 N N N Actual/360
211 Y N N Actual/360
217 Y N N Actual/360
222 Y N N Actual/360
226 N N N Actual/360
230 Y N N Actual/360 Day 1
231 Y N N Actual/360 Day 1
235 Y N N Actual/360
236 Y N N Actual/360
249 Y N N Actual/360 Day 1
253 N N N Actual/360
261 Y N N Actual/360 Day 1
263 Y N N Actual/360
272 Y N N Actual/360
274 Y N N Actual/360
275 Y N N Actual/360
276 Y N N Actual/360
284 Y N N Actual/360
285 Y N N Actual/360
292 Y N N Actual/360
294 Y N N Actual/360 Day 1
296 Y N N Actual/360
297 Y N N Actual/360
300 Y N N Actual/360
301 Y N N Actual/360
302 Y N N Actual/360
304 Y N N Actual/360
Mortgage Loan Number Annual Deposit to Replacement Reserves Initial Deposit to Capital Improvements Reserve
-------------------- -------------------------------------- -----------------------------------------------
5
6
18
31 8,072
36 27,903 3,375
39 217,690
49
53
54 41,500 123,025
62 46,018 356,250
66 8,088
68 18,395 6,250
69 37,750 209,688
73 90,277 27,500
74
78
79
80 11,405 68,744
83 47,500 18,750
89
92
93 27,029
94
98 21,875
99 14,264 16,688
105 23,496
108
109 77,848 49,909
111 62,976 44,410
115
116 146,000 155,211
121 67,065
123 50,750 81,875
125 69,120 76,250
129
131 38,100
134
135 75,504
137 32,000
143 49,389 28,419
149
150 8,569 160,625
158 42,174 11,750
164 60,648
166
169 22,050
170 3,766
173 9,375
176 43,000 61,875
177 30,264 9,750
178
180 6,600 74,491
181 50,004
183 625,000
187
192 77,400
195 29,250 89,000
196 38,250 1,875
201
203
208 68,268
211 6,756 3,125
217 10,750 12,500
222
226 9,845 12,500
230
231 25,920 5,625
235 66,324
236 64,188
249 34,695 7,375
253 2,933 111,928
261 749
263 93,750
272 4,500 3,125
274 42,396
275 2,033
276
284 6,876 5,000
285 22,200 3,125
292 5,250
294 1,512
296 1,965
297 11,200
300
301 3,500 2,500
302 3,750 11,875
304 2,000 1,875
Mortgage Loan Number Initial TI/LC Escrow Ongoing TI/LC Footnote
-------------------- -------------------- ----------------------
5 2,500,000
6
18
31 (3)
36 (3)
39 1,500,000
49
53
54
62 (3)
66
68 (3)
69
73
74
78
79 100,000 (3)
80 (3)
83
89
92 (3)
93 100,000 (3)
94
98
99
105 60,000
108
109
111
115
116
121
123
125
129
131
134
135
137
143
149
150 (3)
158
164
166
169
170 (3)
173
176
177 (3)
178
180 (3)
181
183
187
192
195
196
201
203
208
211
217
222 (3)
226 (3)
230
231
235
236
249
253 (3)
261
263
272
274
275 (3)
276
284
285
292
294 (3)
296 (3)
297
300 (3)
301
302
304
(1) For purposes of determining the Tenant Percent of NRA, such percentages were
calculated based upon the net rentable commercial area (715,601 SF).
(2) Proceeds equal to the loan amount per pad ($45,500) from subsequent
shareholder sales will be escrowed in an interest bearing account with 50% of
the escrowed proceeds applied to reduce principal with no penalty with the
remaining funds held in escrow and used for capital improvements or impound
subsidy. Said pay down or principal will be allowed once annually on February
11th, beginning February 11, 2007. Principal reduction of more than 10% of the
loan or a full pay-off of the loan will be subject to yield maintenance.
(3) In addition to any such escrows funded at loan closing for potential TI/LC,
these Mortgage Loans require funds to be escrowed during some or all of the loan
terms for TI/LC expenses, which may be incurred during the loan term. In certain
instances, escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
(4) With respect to the Xxxxxxx Stop & Shop Mortgage Loan, the related borrower
is required to pay down the principal in the amount of $1,320,000 and all the
accrued interest to date, if and on the date which, the anchor tenant terminates
its lease with respect to the unimproved portion of the mortgage property; and
any other sums due under the related mortgage loan documents, including any
prepayment consideration.
(5) With respect to four Mortgage Loans, representing 0.4% of the Cut-Off Date
Pool Balance, entire amounts of respective Earnout Reserves have been released.
EXHIBIT B
Free Writing Prospectuses
1. Free Writing Prospectus, dated February 12, 2006
2. Free Writing Prospectus, dated February 13, 2006
3. Free Writing Prospectus, dated February 21, 2006
