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MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of March 17, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE...................................................................3
2. CONVEYANCE OF MORTGAGE LOANS............................................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.................................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.................................13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER..................16
6. CLOSING................................................................................21
7. CLOSING DOCUMENTS......................................................................22
8. COSTS..................................................................................24
9. NOTICES................................................................................24
10. SEVERABILITY OF PROVISIONS.............................................................25
11. FURTHER ASSURANCES.....................................................................25
12. SURVIVAL...............................................................................25
13. GOVERNING LAW..........................................................................25
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT...........................................26
15. MISCELLANEOUS..........................................................................26
16. ENTIRE AGREEMENT.......................................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)...................................17
Agreement...........................................2
Certificate Purchase Agreement......................2
Certificates........................................2
Closing Date........................................3
Collateral Information.............................11
Crossed Mortgage Loans.............................17
Defective Mortgage Loan............................17
Final Judicial Determination.......................19
Indemnification Agreement..........................14
Initial Purchaser...................................2
Master Servicer.....................................2
Material Breach....................................16
Material Document Defect...........................16
Memorandum..........................................2
MERS ...............................................5
Mortgage File.......................................4
Mortgage Loan Schedule..............................3
Mortgage Loans......................................2
Officer's Certificate...............................7
Other Mortgage Loans................................2
Pooling and Servicing Agreement.....................2
Private Certificates................................2
Prospectus Supplement...............................2
Public Certificates.................................2
Purchaser...........................................2
Repurchased Loan...................................18
Seller..............................................2
Servicing File......................................9
Special Servicer....................................2
Trust...............................................2
Trustee.............................................2
Underwriters........................................2
Underwriting Agreement..............................2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of March 17, 2006,
between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), and Xxxxxx Xxxxxxx
Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of March 1, 2006, between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer ("Special Servicer"), U.S. Bank National Association, as trustee
("Trustee") and LaSalle Bank National Association, as paying agent, certificate
registrar and authenticating agent. In exchange for the Mortgage Loans and
certain other mortgage loans (the "Other Mortgage Loans") to be purchased by
Purchaser, the Trust will issue to the Depositor pass-through certificates to be
known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ8 (the "Certificates"). The Certificates will be
issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement. The term "Master
Servicer" as used herein shall mean Xxxxx Fargo Bank, National Association in
its capacity as a master servicer under the Pooling and Servicing Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M, Class A-J, Class B, Class C, Class D, Class E and Class F Certificates (the
"Public Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated, LaSalle Financial Services, Inc., Banc of America Securities LLC
and Greenwich Capital Markets, Inc. (the "Underwriters"), pursuant to an
Underwriting Agreement, between Purchaser and the Underwriters, dated March 17,
2006 (the "Underwriting Agreement"), and the Class X, Class X-RC, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class T, Class R-I, Class R-II and Class R-III Certificates (the "Private
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated
(the "Initial Purchaser") pursuant to a Certificate Purchase Agreement, between
Purchaser and the Initial Purchaser, dated March 17, 2006 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated June 7, 2005, as supplemented by a
Prospectus Supplement dated March 17, 2006 (together with the Prospectus, the
"Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
March 17, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
Article I. AGREEMENT TO PURCHASE.
Section 1.01 Seller agrees to sell, and Purchaser agrees to purchase, on a
servicing released basis, the Mortgage Loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be
amended to reflect the actual Mortgage Loans accepted by Purchaser pursuant to
the terms hereof. The Cut-Off Date with respect to the Mortgage Loans is March
1, 2006. The Mortgage Loans will have an aggregate principal balance as of the
close of business on the Cut-Off Date, after giving effect to any payments due
on or before such date, whether or not received, of $1,599,269,551. The sale of
the Mortgage Loans shall take place on March 28, 2006 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
purchase price to be paid by Purchaser for the Mortgage Loans shall equal the
amount set forth as such purchase price on Exhibit 3 hereto. The purchase price
shall be paid to Seller by wire transfer in immediately available funds on the
Closing Date.
Section 1.02 On the Closing Date, Purchaser will assign to Trustee pursuant
to the Pooling and Servicing Agreement all of its right, title and interest in
and to the Mortgage Loans and its rights under this Agreement (to the extent set
forth in Section 14), and Trustee shall succeed to such right, title and
interest in and to the Mortgage Loans and Purchaser's rights under this
Agreement (to the extent set forth in Section 14).
Article II. CONVEYANCE OF MORTGAGE LOANS.
Section 2.01 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein, all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
March 1, 2006, will be executed by Seller and Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date.
The Mortgage Loan Schedule, as it may be amended from time to time on or prior
to the Closing Date, shall conform to the requirements of this Agreement and the
Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 5 in favor of Trustee,
Master Servicer and Special Servicer to empower Trustee, Master Servicer and, in
the event of the failure or incapacity of Trustee and Master Servicer, Special
Servicer, to submit for recording, at the expense of Seller, any Mortgage Loan
documents required to be recorded as described in the Pooling and Servicing
Agreement and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage Files (so long as original
counterparts have previously been delivered to Trustee). Seller agrees to
reasonably cooperate with Trustee, Master Servicer and Special Servicer in
connection with any additional powers of attorney or revisions thereto that are
requested by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used with respect to any Mortgage
Loan by
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or under authorization by any party hereto except to the extent that the absence
of a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to Seller, but in no event
earlier than 18 months from the Closing Date, and (ii) the date (if any) on
which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. Trustee
shall submit such documents for recording, at Seller's expense, after the
periods set forth above, provided, however, Trustee shall not submit such
assignments for recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its return from
the applicable recording office. In addition, not later than the 30th day
following the Closing Date, Seller shall deliver to or on behalf of Trustee each
of the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions and additional time periods as are permitted by this Section 2)
with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller
acknowledges that the term "without recourse" does not modify the duties of
Seller under Section 5 hereof.)
Section 2.02 All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of Trustee in escrow on behalf of
Seller at all times prior to the Closing Date. The Mortgage Files shall be
released from escrow upon closing of the sale of the Mortgage Loans and payments
of the purchase price therefor as contemplated hereby. The Mortgage File for
each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of U.S. Bank National Association, as
Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-HQ8, without recourse,
representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit, with a copy of the
Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the public
recorder's office, with evidence of recording thereon (if recording
is customary in the jurisdiction in which such power of attorney was
executed), or certified by a title insurance company or escrow
company to be a true copy thereof; provided that if such original
Mortgage cannot be delivered with evidence of recording thereon on
or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original
Mortgage has been delivered for recordation or because such original
Mortgage has been lost, Seller shall deliver or cause to be
delivered to Trustee a true and correct copy of such Mortgage,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of
Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (ii) in the
case of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
Mortgage is recorded that such copy is a true and complete copy of
the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if
any, with evidence of recording thereon, or if any such original
modification, consolidation or extension agreement has been
delivered
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to the appropriate recording office for recordation and either has
not yet been returned on or prior to the 90th day following the
Closing Date with evidence of recordation thereon or has been lost
after recordation, a true copy of such modification, consolidation
or extension certified by Seller together with (i) in the case of a
delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to
the appropriate public recording official for recordation or (ii) in
the case of an original modification, consolidation or extension
agreement that has been lost after recordation, a certification by
the appropriate county recording office where such document is
recorded that such copy is a true and complete copy of the original
recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for recording
information not yet available if the instrument being recorded has
not been returned from the applicable recording office), signed by
the holder of record in blank or in favor of "U.S. Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-HQ8,"
provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no such assignments will be required to be submitted for
recording or filing and instead, Seller shall take all actions as
are necessary to cause Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
(e) Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS
or its designees), if any, with evidence of recording thereon or, if
such original assignments of Mortgage have been delivered to the
appropriate recorder's office for recordation, certified true copies
of such assignments of Mortgage certified by Seller, or in the case
of an original blanket intervening assignment of Mortgage retained
by Seller, a copy thereof certified by Seller or, if any original
intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable
recording office or has been lost, a true and correct copy thereof,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of Seller stating that
such original intervening assignment of Mortgage has been sent to
the appropriate public recording official for recordation or (ii) in
the case of an original intervening Assignment of Mortgage that has
been lost after recordation, a certification by the appropriate
county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded
intervening Assignment of Mortgage;
(f) If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or
prior to the 90th day following the Closing Date from the applicable
public recording office, a copy of such Assignment of Leases
certified by Seller to be a true and complete copy of the original
Assignment of Leases submitted for
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recording, together with (i) an original of each assignment of such
Assignment of Leases with evidence of recording thereon and showing
a complete recorded chain of assignment from the named assignee to
the holder of record, and if any such assignment of such Assignment
of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true
and complete copy of the original assignment submitted for
recording, and (ii) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor
of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-HQ8," which assignment may be effected in the related
Assignment of Mortgage, provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of Trustee will be required to be
recorded or delivered and instead, Seller shall take all actions as
are necessary to cause Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title
company with the original Title Insurance Policy to follow within
180 days of the Closing Date or a preliminary title report with an
original Title Insurance Policy to follow within 180 days of the
Closing Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements
assigning such UCC financing statements to Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the
related Mortgage has been recorded in the name of MERS or its
designee, no such financing statements will be required to be
recorded or delivered and instead, Seller shall take all actions as
are necessary to cause Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
(j) Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there
is a lien in favor of the mortgagee in such lease;
(k) Copies of any loan agreements, lock-box agreements and intercreditor
agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage
note evidencing the related B Note), if any, related to any Mortgage
Loan;
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(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than letters of credit representing tenant security deposits which
have been collaterally assigned to the lender), which shall be
assigned and delivered to Trustee on behalf of the Trust with a copy
to be held by Primary Servicer (or Master Servicer), and applied,
drawn, reduced or released in accordance with documents evidencing
or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral
for such Mortgage Loan (other than letters of credit representing
tenant security deposits which have been collaterally assigned to
the lender), which shall be held by Primary Servicer (or Master
Servicer) on behalf of Trustee, with a copy to be held by Trustee,
and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being
understood that Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before
the Closing Date, the bank issuing the letter of credit that the
letter of credit and the proceeds thereof belong to the Trust, and
to use reasonable efforts to obtain within 30 days (but in any event
to obtain within 90 days) following the Closing Date, an
acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to Trustee) or a reissued letter of
credit and (c) to indemnify the Trust for any liabilities, charges,
costs, fees or other expenses accruing from the failure of Seller to
assign the letter of credit hereunder including the right and power
to draw on the letter of credit). In the case of clause (B) above,
any letter of credit held by Primary Servicer (or Master Servicer)
acknowledges that any letter of credit held by it shall be held in
its capacity as agent of the Trust, and if Primary Servicer (or
Master Servicer) sells its rights to service the applicable Mortgage
Loan, Primary Servicer (or Master Servicer) has agreed to assign the
applicable letter of credit to the Trust or at the direction of
Special Servicer to such party as Special Servicer may instruct, in
each case, at the expense of Primary Servicer (or Master Servicer).
Primary Servicer (or Master Servicer) has agreed to indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
(m) The original or a copy of the environmental indemnity agreement, if
any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all hotels
and for such other Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original or a copy of any Environmental Insurance Policy; and
(p) Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to Primary Servicer within 30 days of the Closing Date.
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"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
Section 2.03 The Assignments of Mortgage and assignment of Assignment of
Leases referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
Section 2.04 If Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in Sections
2.2.2, 2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon, solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 90 day period, but
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), to Trustee within such 90 day period, Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as Trustee may consent to,
which consent shall not be unreasonably withheld so long as Seller is, as
certified in writing to Trustee no less often than monthly, in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy).
Section 2.05 Trustee, as assignee or transferee of Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to
Seller.
Section 2.06 Within 45 days following the Closing Date, Seller shall deliver,
and Purchaser, Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of Seller, in the appropriate public
office for real property records, each assignment referred to in clauses 2.2.4
and 2.2.6(ii) above (with recording information in blank if such information is
not yet available). Within 10 days following the Closing Date, Seller shall
deliver, and Purchaser, Trustee or the agents of either may submit or cause to
be submitted for filing, at the expense of Seller, in the appropriate public
office for Uniform Commercial Code financing statements, the assignment referred
to in clause 2.2.9(B). If any such document or
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instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, Seller shall prepare a substitute therefor or cure
such defect, and Seller shall, at its own expense (except in the case of a
document or instrument that is lost by Trustee), record or file, as the case may
be, and deliver such document or instrument in accordance with this Section 2.
Section 2.07 As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, Seller shall provide a notice on or prior to the
date that is 30 days after the Closing Date to the franchisor or the issuing
financial institution, as applicable, of the transfer of such Mortgage Loan to
the Trust pursuant to the Pooling and Servicing Agreement, and inform such
parties that any notices to the Mortgagor's lender pursuant to such franchise
agreement or letter of credit should thereafter be forwarded to Master Servicer
and, with respect to each franchise agreement, provide a franchise comfort
letter to the franchisor on or prior to the date that is 30 days after the
Closing Date. After the Closing Date, with respect to any letter of credit that
has not yet been assigned to the Trust, upon the written request of Master
Servicer or the applicable Primary Servicer, Seller will draw on such letter of
credit as directed by Master Servicer or such Primary Servicer in such notice to
the extent Seller has the right to do so.
Section 2.08 Documents that are in the possession of Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered to Trustee shall be shipped by Seller
to or at the direction of Master Servicer, on behalf of Purchaser, on or prior
to the 75th day after the Closing Date, in accordance with Section 3.1 of the
Primary Servicing Agreement, if applicable.
Section 2.09 The documents required to be delivered to Master Servicer (or in
the alternative, Primary Servicer) shall include, to the extent required to be
(and actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses or data. Delivery of
any of the foregoing documents to Primary Servicer shall be deemed a delivery to
Master Servicer and satisfy Seller's obligations under this subparagraph. Each
of the foregoing items may be delivered by Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to Master Servicer.
Section 2.10 Upon the sale of the Mortgage Loans by Seller to Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in Purchaser and
its assigns, and the ownership of all
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records and documents constituting the Servicing File with respect to the
related Mortgage Loan prepared by or that come into the possession of Seller
shall immediately vest in Purchaser and its assigns, and shall be delivered
promptly by Seller to or on behalf of either Trustee or Master Servicer as set
forth herein, subject to the requirements of the Primary Servicing Agreement.
Seller's and Purchaser's records shall reflect the transfer of each Mortgage
Loan from Seller to Purchaser and its assigns as a sale.
Section 2.11 It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to Purchaser by Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by Seller to Purchaser to secure a debt or other obligation of
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans or any related property are held to be the property of
Seller, or if for any other reason this Agreement is held or deemed to create a
security interest in the Mortgage Loans or any related property, then:
(a) this Agreement shall be deemed to be a security agreement; and
(b) the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices
of credit and investment property consisting of, arising
from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule,
including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the
Cut-Off Date, all substitute or replacement Mortgage Loans
and all distributions with respect thereto, and the Mortgage
Files;
(ii) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices
of credit, investment property and other rights arising from
or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to,
or claims against other Persons with respect to, all or any
part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of
any investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
Section 2.12 The possession by Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-313
10
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, Seller makes no representation or warranty as to the perfection of
any such security interest.
Section 2.13 Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
Section 2.14 Seller shall, to the extent consistent with this Agreement and
upon request by or on behalf of Purchaser, take such reasonable actions as may
be necessary to ensure that, if this Agreement were deemed to create a security
interest in the property described above, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. In such case,
Seller hereby authorizes Trustee to file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
Section 2.15 Notwithstanding anything to the contrary contained herein, and
subject to Section 2.1, Purchaser shall not be required to purchase any Mortgage
Loan as to which any Mortgage Note (endorsed as described in clause 2.2.1)
required to be delivered to or on behalf of Trustee or Master Servicer pursuant
to this Section 2 on or before the Closing Date is not so delivered, or is not
properly executed or is defective on its face, and Purchaser's acceptance of the
related Mortgage Loan on the Closing Date shall in no way constitute a waiver of
such omission or defect or of Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Article III. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
Section 3.01 Seller shall (i) deliver to Purchaser on or before the Closing
Date a diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or Trustee to cause Seller to cure any Material
Document Defect or Material Breach (each as defined below), or to repurchase or
replace the defective Mortgage Loans pursuant to Section 5 hereof.
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Section 3.02 On or prior to the Closing Date, Seller shall allow
representatives of any of Purchaser, each Underwriter, each Initial Purchaser,
Trustee, Special Servicer and each Rating Agency to examine and audit all books,
records and files pertaining to the Mortgage Loans, Seller's underwriting
procedures and Seller's ability to perform or observe all of the terms,
covenants and conditions of this Agreement. Such examinations and audits shall
take place at one or more offices of Seller during normal business hours and
shall not be conducted in a manner that is disruptive to Seller's normal
business operations upon reasonable prior advance notice. In the course of such
examinations and audits, Seller will make available to such representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
Seller shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide Purchaser with
all material information regarding Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements as
provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller in
any material respect. Within 45 days after the Closing Date, Seller shall
provide Master Servicer or Primary Servicer, if applicable, with any additional
information identified by Master Servicer or Primary Servicer, if applicable, as
necessary to complete the CMSA Property File, to the extent that such
information is available.
Section 3.03 Purchaser may exercise any of its rights hereunder through one
or more designees or agents, provided Purchaser has provided Seller with prior
notice of the identity of such designee or agent.
Section 3.04 Purchaser shall keep confidential any information regarding
Seller and the Mortgage Loans that has been delivered into Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or Purchaser is required by law or court order to disclose
such information. If Purchaser is required to disclose in the Memorandum or the
Prospectus Supplement confidential information regarding Seller as described in
the preceding sentence, Purchaser shall provide to Seller a copy of the proposed
form of such disclosure prior to making such disclosure and Seller shall
promptly, and in any event within two Business Days, notify Purchaser of any
inaccuracies therein, in which case Purchaser shall modify such form in a manner
that corrects such inaccuracies. If Purchaser is required by law or court order
to disclose confidential information regarding Seller as described in the second
preceding sentence, Purchaser shall notify Seller and cooperate in Seller's
efforts to obtain a protective order or other reasonable assurance that
confidential treatment will be accorded such information and, if in the absence
of a protective order or such assurance, Purchaser is compelled as a matter of
law to disclose such information, Purchaser shall, prior to making such
disclosure, advise and consult with Seller and its counsel as to such disclosure
and the nature and wording of such disclosure and Purchaser shall use reasonable
efforts to obtain confidential treatment therefor. Notwithstanding the
foregoing, if reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to
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make such disclosure immediately, then Purchaser shall be permitted to make such
disclosure without prior review by Seller.
Article IV. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
Section 4.01 To induce Purchaser to enter into this Agreement, Seller hereby
makes for the benefit of Purchaser and its assigns with respect to each Mortgage
Loan (subject to the last paragraph of this Section 4.1) as of the date hereof
(or as of such other date specifically set forth in the particular
representation and warranty) each of the representations and warranties set
forth on Exhibit 2 hereto, except as otherwise set forth on Schedule A attached
thereto, and hereby further represents and warrants to Purchaser as of the date
hereof that:
(a) Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. Seller has
the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution
and delivery hereof by Purchaser, this Agreement constitutes the
valid, legal and binding agreement of Seller, enforceable in
accordance with its terms, except as such enforcement may be limited
by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting
the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(c) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery
and performance of or compliance by Seller with this Agreement, or
the consummation by Seller of any transaction contemplated hereby,
other than (A) such qualifications as may be required under state
securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Seller's sale of the Mortgage
Loans to Purchaser, (C) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been
obtained and (D) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would
not have a material adverse effect on the performance by Seller
under this Agreement.
(d) Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller,
conflicts or will conflict with, results or will
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result in a breach of, or constitutes or will constitute a default
under (A) any term or provision of Seller's articles of organization
or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by
which it or any of its assets is bound or results in the creation or
imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement,
or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except
where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of
any lien, charge or encumbrance, will not have a material adverse
effect on the consummation of the transactions contemplated hereby
by Seller or materially and adversely affect its ability to perform
its obligations and duties hereunder or result in any material
adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as
now conducted.
(e) There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing
against Seller before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans
to Purchaser or the execution or delivery by, or enforceability
against, Seller of this Agreement or have an effect on the financial
condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
(f) On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right,
title and interest in and to the Mortgage Loans to Purchaser.
(g) To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated March 17, 2006, between
Seller, Purchaser, the Underwriters and the Initial Purchasers (the
"Indemnification Agreement")) relating to the Mortgage Loans does
not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (when read together with the Final Prospectus Supplement,
in the case of Public Certificates, or when read together with the
Memorandum, in the case of the Private Certificates).
Notwithstanding anything contained herein to the contrary, this
subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser
and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, provided that any representations
and warranties made as of a specified date shall be true and correct in all
material respects as of such specified date.
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(h) Seller has complied with the disclosure requirements of Regulation
AB that arise from its role as "seller" and "sponsor" in connection
with the issuance of the Certificates.
(i) For so long as the Trust is subject to the reporting requirements of
the Exchange Act, Seller shall provide Purchaser (or with respect to
any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor in such Other Securitization) and the
Paying Agent with any Additional Form 10-D Disclosure and any
Additional Form 10-K Disclosure set forth next to Seller's name on
Schedule XV and Schedule XVI of the Pooling and Servicing Agreement
within the time periods set forth in the Pooling and Servicing
Agreement.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
Section 4.02 To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
(a) Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently conducted
by it.
(b) Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement.
Purchaser has duly and validly authorized the execution, delivery
and performance of this Agreement and has duly and validly executed
and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by Seller, constitutes the
valid and binding obligation of Purchaser, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(c) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery
and performance of or compliance by Purchaser with this Agreement,
or the consummation by Purchaser of any transaction contemplated
hereby that has not been obtained or made by Purchaser.
(d) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate
Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both,
would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which
Purchaser is a party or that may be applicable to Purchaser or its
assets.
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(e) Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not
constitute a violation of any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over Purchaser or
its assets, which violation could materially and adversely affect
the condition (financial or otherwise) or the operation of Purchaser
or its assets or could materially and adversely affect its ability
to perform its obligations and duties hereunder.
(f) There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against
Purchaser before any court, administrative agency or other tribunal,
the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this
Agreement or have an effect on the financial condition of Purchaser
that would materially and adversely affect the ability of Purchaser
to perform its obligation under this Agreement.
(g) Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the
Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
Article V. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER.
Section 5.01 It is hereby acknowledged that Seller shall make for the benefit
of Trustee on behalf of the holders of the Certificates, whether directly or by
way of Purchaser's assignment of its rights hereunder to Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
Section 5.02 It is hereby further acknowledged that if any document required
to be delivered to Trustee pursuant to Section 2 is not delivered as and when
required (and including the expiration of any grace or cure period), is not
properly executed or is defective on its face, or if there is a breach of any of
the representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material
16
Document Defect" and such a breach described in the preceding clause (i) or (ii)
a "Material Breach"), the party discovering such Material Document Defect or
Material Breach shall promptly notify, in writing, the other parties; provided
that any breach of the representation and warranty contained in paragraph 42 of
such Exhibit 2 shall constitute a Material Breach only if such prepayment
premium or yield maintenance charge is not deemed "customary" for commercial
mortgage loans as evidenced by (i) an opinion of tax counsel to such effect or
(ii) a determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, Master Servicer
shall, and Special Servicer may, request that Seller, not later than 90 days
from Seller's receipt of the notice of such Material Document Defect or Material
Breach, cure such Material Document Defect or Material Breach, as the case may
be, in all material respects; provided, however, that if such Material Document
Defect or Material Breach, as the case may be, cannot be corrected or cured in
all material respects within such 90 day period, and such Material Document
Defect or Material Breach would not cause the Mortgage Loan to be other than a
"qualified mortgage"(as defined in the Code) but Seller is diligently attempting
to effect such correction or cure, as certified by Seller in an Officer's
Certificate delivered to Trustee, then the cure period will be extended for an
additional 90 days unless, solely in the case of a Material Document Defect, (x)
the Mortgage Loan is, at the end of the initial 90 day period, then a Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result
of a monetary default or as described in clause (ii) or clause (v) of the
definition of "Servicing Transfer Event" in the Pooling and Servicing Agreement
and (y) the Material Document Defect was identified in a certification delivered
to Seller by Trustee pursuant to Section 2.2 of the Pooling and Servicing
Agreement not less than 90 days prior to the delivery of the notice of such
Material Document Defect. The parties acknowledge that neither delivery of a
certification or schedule of exceptions to Seller pursuant to Section 2.2 of the
Pooling and Servicing Agreement or otherwise nor possession of such
certification or schedule by Seller shall, in and of itself, constitute delivery
of notice of any Material Document Defect or knowledge or awareness by Seller of
any Material Document Defect listed therein.
Section 5.03 Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
respects within the above cure periods, Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from Purchaser or its assignee at the Purchase Price
as defined in the Pooling and Servicing Agreement, or (ii) if within the
three-month period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the related Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-2(f)), at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence
or the previous paragraph, repurchase or substitution must occur within 90 days
from the date Seller was notified of the breach or defect. Seller agrees that
any substitution shall be completed in accordance with the terms and conditions
of the Pooling and Servicing Agreement.
Section 5.04 If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and
17
cross-defaulted with one or more other Mortgage Loans ("Crossed Mortgage Loans")
and (z) the applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such Crossed
Mortgage Loans (without regard to this paragraph), then the applicable document
defect or breach (as the case may be) shall be deemed to constitute a Material
Document Defect or Material Breach, as the case may be, as to each such Crossed
Mortgage Loan for purposes of the above provisions, and Seller shall be
obligated to repurchase or replace each such Crossed Mortgage Loan in accordance
with the provisions above, unless, in the case of such breach or document
defect, (A) Seller provides a Nondisqualification Opinion to Trustee at the
expense of Seller if Trustee acting at the direction of the Controlling Class
determines that it would be usual and customary in accordance with industry
practice to obtain a Nondisqualification Opinion and (B) both of the following
conditions would be satisfied if Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach or Material Document Defect had
occurred without regard to this paragraph (the "Affected Loan(s)"): (i) the debt
service coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than the greater of (A) the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth
under the heading "NCF DSCR" in Appendix II to the Final Prospectus Supplement
and (B) 1.25x, and (ii) the loan-to-value ratio for all such Crossed Mortgage
Loans (excluding the Affected Loan(s)) is not greater than the lesser of (A) the
current loan-to-value ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "Cut-Off Date LTV" in Appendix II to the
Final Prospectus Supplement and (B) 75%. The determination of Master Servicer as
to whether the conditions set forth above have been satisfied shall be
conclusive and binding in the absence of manifest error. Master Servicer will be
entitled to cause to be delivered, or direct Seller to (in which case Seller
shall) cause to be delivered to Master Servicer: (A) an Appraisal of any or all
of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of Seller if the scope and cost of the Appraisal is approved by Seller
(such approval not to be unreasonably withheld) and (B) an opinion of counsel
that not requiring the repurchase of each such other Mortgage Loan will not
result in an Adverse REMIC Event.
Section 5.05 With respect to any Defective Mortgage Loan, to the extent that
Seller is required to repurchase or substitute for such Defective Mortgage Loan
(each, a "Repurchased Loan") in the manner prescribed above while Trustee (as
assignee of Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
18
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
Section 5.06 Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity that appears to be regular on its face; (b) the
absence from the Mortgage File of the original signed Mortgage that appears to
be regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the Mortgage
was recorded; or (c) the absence from the Mortgage File of the item specified in
paragraph 2.2.8. If any of the foregoing Material Document Defects is discovered
by the Custodian (or Trustee if there is no Custodian), Trustee (or as set forth
in Section 2.3(a) of the Pooling and Servicing Agreement, Master Servicer) will
take the steps described elsewhere in this Section, including the giving of
notices to the Rating Agencies and the parties hereto and making demand upon
Seller for the cure of the Material Document Defect or repurchase or replacement
of the related Mortgage Loan.
Section 5.07 If Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii)
to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each
in accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than Seller shall
be without (i) recourse of any kind (either express or implied) by such Person
against Seller and (ii) representation or warranty of any kind (either express
or implied) by Seller to or for the benefit of such Person.
Section 5.08 Seller shall have the right to purchase certain of the Mortgage
Loans or REO Properties, as applicable, in accordance with Section 9.36 of the
Pooling and Servicing Agreement.
Section 5.09 The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or
19
Mortgage Loan) shall not prejudice any claim against Seller for repurchase of
the REO Mortgage Loan or REO Property. In such an event, Master Servicer shall
notify Seller of the discovery of the Material Document Defect or Material
Breach and Seller shall have 90 days to correct or cure such Material Document
Defect or Material Breach or purchase the REO Property at the Purchase Price.
After a final liquidation of the Mortgage Loan or REO Mortgage Loan, if a court
of competent jurisdiction issues a final order after the expiration of any
applicable appeal period that Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan (a "Final Judicial Determination") or
Seller otherwise accepts liability, then, but in no event later than the
Termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, Seller will be obligated to pay to the Trust the difference between
any Liquidation Proceeds received upon such liquidation in accordance with the
Pooling and Servicing Agreement (including those arising from any sale to
Seller) and the Purchase Price.
Section 5.10 Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or REO Property
as described in this Section 5, Special Servicer shall not receive a Liquidation
Fee from Seller (but may collect such Liquidation Fee from the related
Liquidation Proceeds as otherwise provided herein); provided, however, that in
the event Seller is obligated to repurchase the Mortgage Loan or REO Mortgaged
Property after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to any
Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Mortgaged Property. Except as expressly set
forth above, no Liquidation Fee shall be payable in connection with a repurchase
of a Mortgage Loan by Seller.
Section 5.11 The obligations of Seller set forth in this Section 5 to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Section 5.12 Notwithstanding the foregoing, in the event that there is a
breach of the representations and warranties set forth in paragraph 39 of
Exhibit 2 hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan, and the related Mortgagor's
payments made for the reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan are insufficient and cause the Trust
to incur an Additional Trust Expense in an amount equal to such reasonable costs
and expenses not paid by such Mortgagor, Seller hereby covenants and agrees to
reimburse the Trust within 90 days of the receipt of notice of such breach in an
amount sufficient to avoid such Additional Trust Expense. The parties hereto
acknowledge that such reimbursement shall be Seller's sole obligation with
respect to the breach discussed in the previous sentence.
Section 5.13 The Pooling and Servicing Agreement shall provide that Trustee
(or Master Servicer or Special Servicer on its behalf) shall give written notice
promptly (but in any event
20
within three Business Days) to Seller of its discovery of any Material Document
Defect or Material Breach and prompt written notice to Seller in the event that
any Mortgage Loan becomes a Specially Serviced Mortgage Loan (as defined in the
Pooling and Servicing Agreement).
Section 5.14 If Seller repurchases any Mortgage Loan pursuant to this
Section 5, Purchaser or its assignee, following receipt by Trustee of the
Purchase Price therefor, promptly shall deliver or cause to be delivered to
Seller all Mortgage Loan documents with respect to such Mortgage Loan, and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to Trustee shall be endorsed and assigned to Seller in the same manner
such that Seller shall be vested with legal and beneficial title to such
Mortgage Loan, in each case without recourse, including any property acquired in
respect of such Mortgage Loan or proceeds of any insurance policies with respect
thereto.
Article VI. CLOSING.
Section 6.01 The closing of the sale of the Mortgage Loans shall be held at
the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at
9:00 a.m., New York time, on the Closing Date. The closing shall be subject to
each of the following conditions:
(a) All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall
be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be
true and correct as of such specified date (to the extent of the
standard, if any, set forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser,
as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of
the Closing Date pursuant to Section 2 hereof.
(d) The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to
Purchaser and its affiliates in their sole determination and the
parties shall have agreed to the form and contents of Seller's
Information to be disclosed in the Memorandum and the Prospectus
Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied
with, and Seller and Purchaser shall have the ability to comply with
all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date.
(f) Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
21
(g) The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial
Purchasers shall have suspended, delayed or otherwise cancelled the
Closing Date.
(i) Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
Section 6.02 Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable Purchaser to
purchase the Mortgage Loans on the Closing Date.
ARTICLE VII. CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
Section 7.01 This Agreement duly executed by Purchaser and Seller.
Section 7.02 A certificate of Seller, executed by a duly authorized officer
of Seller and dated the Closing Date, and upon which Purchaser and its
successors and assigns may rely, to the effect that: (i) the representations and
warranties of Seller in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made
on the Closing Date, provided that any representations and warranties made as of
a specified date shall be true and correct as of such specified date; and (ii)
Seller has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied on or prior to the Closing Date.
Section 7.03 True, complete and correct copies of Seller's articles of
organization and by-laws or other organizational documents.
Section 7.04 A certificate of existence for Seller from the Secretary of
State of New York dated not earlier than 30 days prior to the Closing Date.
Section 7.05 A certificate of the Secretary or Assistant Secretary of Seller,
dated the Closing Date, and upon which Purchaser may rely, to the effect that
each individual who, as an officer or representative of Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
Section 7.06 An opinion of counsel (which, other than as to the opinion
described in paragraph 7.6.6 below, may be in-house counsel) to Seller, dated
the Closing Date, substantially to the
22
effect of the following (with such changes and modifications as Purchaser may
approve and subject to such counsel's reasonable qualifications):
(a) Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under
this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
Seller.
(c) No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by
Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(d) Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions
contemplated by the terms of this Agreement (A) conflicts with or
results in a breach or violation of, or constitutes a default under,
the organizational documents of Seller, (B) to the knowledge of such
counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which
Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any
such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) conflicts with or results in a
breach or violation of any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority
having jurisdiction over Seller or its assets, except where in any
of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien,
charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by Seller
or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties
or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now
conducted.
(e) To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or
threatened against Seller, (a) asserting the invalidity of this
Agreement or (b) which materially and adversely affect the
performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(f) This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as
such enforcement may be limited by (1) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (2) other
laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
23
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
Section 7.07 A "10b-5" opinion of counsel addressed to Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the Underwriters,
as to the disclosure provided by Seller to Purchaser in connection with the
Certificates.
Section 7.08 An opinion of counsel addressed to Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the Underwriters,
that such disclosure complies as to form with the applicable requirements of
Regulation AB. Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
Section 7.09 A letter from Deloitte & Touche, certified public accountants,
dated the date hereof, to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Memorandum and the
Prospectus Supplement agrees with the records of Seller.
Section 7.10 Such further certificates, opinions and documents as Purchaser
may reasonably request.
Section 7.11 An officer's certificate of Purchaser, dated as of the Closing
Date, with the resolutions of Purchaser authorizing the transactions described
herein attached thereto, together with certified copies of the charter, by-laws
and certificate of good standing of Purchaser dated not earlier than 30 days
prior to the Closing Date.
Section 7.12 Such other certificates of Purchaser's officers or others and
such other documents to evidence fulfillment of the conditions set forth in this
Agreement as Seller or its counsel may reasonably request.
Section 7.13 An executed Xxxx of Sale in the form attached hereto as
Exhibit 4.
ARTICLE VIII. COSTS. Seller shall pay Purchaser the costs and expenses as
agreed upon by Seller and Purchaser in a separate Letter of Understanding dated
March 17, 2006.
ARTICLE IX. NOTICES. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
24
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a
copy to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Legal Department, Attention: Xxxxxxxx Xxxxx, Esq. (or such other address as may
hereafter be furnished in writing by Purchaser), or if (ii) to Seller, addressed
to Seller at Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Deutsch (or to such other address as Seller may
designate in writing) with a copy to the attention of Xxxxxxxx Xxxxx, Esq.
ARTICLE X. SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
ARTICLE XI. FURTHER ASSURANCES. Seller and Purchaser each agree to execute
and deliver such instruments and take such actions as the other may, from time
to time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement and the Pooling and Servicing Agreement.
ARTICLE XII. SURVIVAL. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
ARTICLE XIII. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND
25
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
ARTICLE XIV. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement
shall inure to the benefit of and shall be binding upon Seller, Purchaser and
their respective successors, legal representatives, and permitted assigns, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that the rights and obligations of Purchaser pursuant to
Sections 2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be
assigned to Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
ARTICLE XV. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
ARTICLE XVI. ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
26
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx X Xxxxxx
-------------------------------------
Name: Xxxxxxx X Xxxxxx
-------------------------------
Title: Vice President
------------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X Xxxxxx
-------------------------------------
Name: Xxxxxxx X Xxxxxx
-------------------------------
Title: Vice President
------------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
(XXXXXX)
--------------------------------------------------------------------------------------------------------------------------------
ORIGINAL REMAINING
MORTGAGE CUT-OFF TERM TERM ORIGINAL
MORTGAGE LOAN DATE TO TO AMORT.
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM
--------------------------------------------------------------------------------------------------------------------------------
1 MSMC Xxxx-Xxxxxxx, Central Park (I) $92,081,544 09/30/2005 120 115 227
2 MSMC Xxxx-Xxxxxxx, Washington (I) $61,100,838 09/30/2005 120 115 227
3 MSMC Xxxx-Xxxxxxx, Battery Park (I) $50,773,936 09/30/2005 120 115 227
4 MSMC Xxxx-Xxxxxxx, Boston (I) $40,447,034 09/30/2005 120 115 227
5 MSMC Xxxx-Xxxxxxx, Georgetown (I) $22,374,955 09/30/2005 120 115 227
20 MSMC 000 X. Xxxxx Xxxxxx Xxxx (III) $38,760,781 12/13/2005 120 118 360
21 MSMC 7451 & 0000 Xxxxxxxxx Xxxxx (XXX) $16,551,901 12/13/2005 120 118 360
22 MSMC 000 X. Xxxxxxxxxx Xxxxx (III) $11,174,279 12/13/2005 120 118 360
23 MSMC 0000 Xxxxxx Xxxx (XXX) $9,288,620 12/13/2005 120 118 360
24 MSMC Marketplace at Northglenn $64,500,000 12/21/2005 120 118 360
26 MSMC Roseville Portfolio - Stoneview Office (IV) $19,030,000 02/15/2006 120 120 360
27 MSMC Roseville Portfolio - Fairway Commons II (IV) $13,900,000 02/15/2006 120 120 360
28 MSMC Roseville Portfolio - Eureka Ridge (IV) $13,170,000 02/15/2006 120 120 360
33 MSMC Ladera Center $37,150,000 11/21/2005 120 117 360
41 MSMC Publix Plaza at Weston Commons $35,000,000 12/12/2005 120 118 IO
42 MSMC Powers Industrial Portfolio - Xxxxxxxxx
Distribution (VII) $18,600,000 02/28/2006 120 120 240
43 MSMC Powers Industrial Portfolio - Wal-Mart
Distribution (VII) $14,830,000 02/28/2006 120 120 240
46 MSMC Crate and Barrel Headquarters $28,907,943 11/22/2005 120 117 360
47 MSMC Northrop Grumman Building $26,936,660 12/20/2005 120 118 360
48 MSMC Westfield Shops $25,200,000 08/04/2005 120 114 360
50 MSMC Santa Clarita Medical Plaza $24,000,000 12/29/2005 120 118 360
51 MSMC 2200 and 0000 Xxxxxxxxx Xxxxx $23,110,981 08/30/2005 120 114 360
00 XXXX Xxxx Xxxxxx Xxxxxxxx Xxxxxx $22,100,000 11/30/2005 120 117 360
54 MSMC Woodholme Medical Center $21,200,000 10/03/2005 120 116 360
58 MSMC Moorestown Shopping Center $19,600,000 10/18/2005 120 116 360
59 MSMC The Landings Shopping Center $19,200,000 11/10/2005 116 113 360
64 MSMC Bel Air Town Center $18,500,000 11/01/2005 180 176 360
65 MSMC Castleton Retail Portfolio - Champaign
Marketview Shopping Center (D) $6,856,763 11/15/2005 120 117 360
66 MSMC Xxxxxxxxx Xxxxxx Xxxxxxxxx - Xxxxxxxxx Xxxxxx
Xxxxxxxx (X) $6,537,844 11/15/2005 120 117 360
67 MSMC Castleton Retail Portfolio - Castleton Square
Marketplace (D) $5,042,910 11/15/2005 120 117 360
69 MSMC Island @ Carlsbad $17,030,000 10/27/2005 120 116 360
70 MSMC Alderwood Parkway Retail Center $16,500,000 12/14/2005 60 58 360
72 MSMC The Shoppes at Shillington $16,100,000 09/20/2005 120 115 360
77 MSMC The Market at Lake Houston $15,675,000 12/12/2005 120 118 IO
79 MSMC Chestnut Pointe Apartments $15,250,000 12/14/2005 120 118 360
80 MSMC The Market Place at The Village at Sandhill $15,000,000 08/31/2005 120 114 360
84 MSMC Shaws Plaza of Gilford $14,000,000 08/11/2005 120 114 360
86 MSMC Charlestown Pines Apartments $13,600,000 08/24/2005 120 114 360
00 XXXX Xxxxxxxxxx Xxxxxx $13,600,000 10/05/2005 120 116 360
88 MSMC Xxxxx Valley Plaza $13,335,000 11/17/2005 120 117 360
92 MSMC Comerica Tower $13,000,000 06/20/2005 120 112 360
93 MSMC Xxxxx Tower $12,942,831 10/14/2005 120 116 360
94 MSMC Dakota Ridge Apartments $12,475,000 06/30/2005 120 112 360
00 XXXX Xxxxxxxxxx Xxxxxxx Xxxxx $12,459,106 11/30/2005 120 117 360
00 XXXX Xxxxxx Xxxxx Apartments $12,100,000 08/31/2005 120 114 360
97 MSMC The Shops of Legacy $12,000,000 11/01/2005 120 116 300
00 XXXX Xxxxxxx Xxxx xx Xxxxxx Xxxxx $12,000,000 09/30/2005 120 115 360
100 MSMC Haddon Hall Commons Shopping Center $11,800,000 07/14/2005 120 113 360
101 MSMC Xxxxxxxx Technology Center $11,750,000 12/15/2005 120 118 IO
103 MSMC Brookside Xxxxxxx Phase I $11,000,000 02/23/2006 120 120 360
105 MSMC Manchester Plaza $10,926,989 10/28/2005 120 116 300
106 MSMC Windcrest Spring Apartments $10,625,305 12/17/2004 84 70 360
108 MSMC 000-000 Xxxxxxxxx Xxxxx $10,000,000 10/29/2004 120 104 360
109 MSMC East Hills Portfolio - East Hills Plaza (IX) $6,973,193 11/15/2005 120 117 300
110 MSMC East Hills Portfolio - Blairsville (IX) $974,747 11/15/2005 120 117 300
111 MSMC East Hills Portfolio - Central City (IX) $382,401 11/15/2005 120 117 300
112 MSMC East Hills Portfolio - 300 Goucher (IX) $344,911 11/15/2005 120 117 300
113 MSMC East Hills Portfolio - 000 0xx Xx. (IX) $337,413 11/15/2005 120 117 300
114 MSMC East Hills Portfolio - 000 Xxxxxx Xxxxxx (IX) $322,416 11/15/2005 120 117 300
000 XXXX Xxxx Xxxxx Xxxxxxxxx - 000 X. Xxxxxxxx (XX) $314,918 11/15/2005 120 117 300
000 XXXX Xxxxxxxx Xxxxxxx Shopping Center $9,586,897 01/05/2006 120 119 360
118 MSMC Forbes & Xxxxxxxx Apartments $9,400,000 11/30/2005 120 117 360
121 MSMC The Village at Las Sendas Retail Center $8,950,754 09/23/2005 120 115 360
122 MSMC 00 Xxxx Xxxxxxx - Xxxx Xxxxxx, XX $8,773,054 11/30/2005 120 117 360
124 MSMC The Shoppes at Mirador Square $8,300,000 09/27/2005 120 115 360
125 MSMC Arbors of Gahanna $8,180,637 12/09/2005 120 118 360
127 MSMC River Oaks MHC $7,954,921 09/14/2005 120 115 360
000 XXXX Xxxxxxx Xxxxxxx Xxxxxx $7,865,128 10/21/2005 120 116 360
000 XXXX Xxxxxx Xxxxxx Xxxxxxx $7,750,000 11/22/2005 120 117 360
000 XXXX Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx $7,565,178 10/03/2005 120 116 360
000 XXXX Xxx Xxxxx Marketplace $7,500,000 06/20/2005 120 112 360
134 MSMC Shoppes at Elmwood $7,476,192 11/21/2005 120 117 360
135 MSMC Xxxx Theaters $7,206,900 11/01/2005 120 116 240
136 MSMC Brier Creek Shopping Center $7,162,652 09/15/2005 120 115 360
000 XXXX Xxxxxxx Xxxx Townhomes $7,114,646 12/30/2005 120 118 240
138 MSMC 000 Xxxxxxxx $7,083,801 12/08/2005 120 118 360
140 MSMC Sports Authority / Dollar Tree $7,026,322 11/02/2005 120 117 360
141 MSMC 00 Xxxx Xxxxxxx - Xxxxxxxxx, XX $6,956,860 11/02/2005 120 117 300
142 MSMC Coors Central Shopping Center $6,930,000 09/21/2005 120 115 360
143 MSMC Sequins Warehouse $6,853,660 09/01/2005 120 114 360
000 XXXX Xxxx Xxxx Xxxxxxx Apartments $6,700,000 11/30/2005 120 117 IO
000 XXXX Xxxxxx Xxxxxx Xxxxx $6,679,249 11/21/2005 120 117 360
000 XXXX Xxxxxxxx Shopping Center $6,356,265 08/22/2005 120 114 360
152 MSMC Hampton Inn & Suites - Alpharetta $6,080,406 12/30/2005 120 118 300
153 MSMC Hampton Inn Rochester $6,079,742 11/30/2005 120 117 360
000 XXXX Xxxxxxxxx Xxxxxx Xxxx $6,056,492 10/28/2005 120 116 360
155 MSMC Biltmore Residence Inn $6,051,683 09/14/2005 120 115 300
156 MSMC 000 Xxxxx Xxxxxx $5,971,155 10/31/2005 120 116 360
000 XXXX Xxxxxx Xxxxx $5,474,281 10/04/2005 120 116 360
162 MSMC Tudor Towers of Long Beach $5,357,349 11/30/2005 120 117 360
164 MSMC 0000 X. Xxxx Xxxxxx $5,282,133 11/02/2005 120 117 360
165 MSMC The Xxxxxx Apartments $5,271,000 09/29/2005 120 115 360
166 MSMC Sky View Apartments $5,262,103 09/27/2005 120 115 240
167 MSMC Harbor Shores Medical I $5,250,000 11/14/2005 120 117 360
169 MSMC TW Metals - Chicago $5,177,767 10/20/2005 132 128 360
170 MSMC Waterstone Place $5,163,706 08/23/2005 120 114 360
000 XXXX Xxxxxxxx Xxxx Xxxxxx Xxxxxxxx $5,127,689 10/27/2005 120 116 360
172 MSMC Washington Park - Circuit City $5,000,000 09/16/2005 120 115 360
173 MSMC Willow Court Industrial $5,000,000 09/28/2005 120 115 360
000 XXXX Xxxxxxxxx - Xxxxxxxx $4,965,567 08/19/2005 120 114 360
177 MSMC 100 & 000 Xxxxx Xxxxxxx $4,873,607 09/22/2005 120 115 360
180 MSMC Washington Xxxx - Xxxxx Mart $4,690,000 09/16/2005 120 115 360
000 XXXX Xxxxxxxxxx at Vinings Shopping Center $4,622,866 09/06/2005 120 115 360
182 MSMC Westchester Apartments $4,600,000 09/01/2005 120 115 360
185 MSMC Sprint Plaza $4,529,114 10/07/2005 120 116 360
187 MSMC 000 Xxxxxx Xxx $4,480,322 10/26/2005 120 116 360
188 MSMC Woodstock Flex $4,480,000 12/01/2005 120 117 360
000 XXXX Xxxxx Xxxxxxx $4,450,000 09/19/2005 120 115 360
000 XXXX Xxxxxxxxx - Xxxxxxxxxx $4,340,912 11/18/2005 120 117 360
202 MSMC 000 Xxxxx Xxxxxxxx Xxxxxx $4,275,000 12/13/2005 120 118 360
204 MSMC Pfizer Building $4,202,146 07/20/2005 60 53 300
205 MSMC Morgan Manor $4,179,232 12/30/2005 120 118 240
206 MSMC 000 Xxxxx Xxxx $4,176,746 09/02/2005 120 115 360
207 MSMC Green Valley Station Shopping Center $4,120,000 11/15/2005 120 117 360
208 MSMC Brunos Auburn $4,108,466 06/30/2005 120 112 360
210 MSMC TW Metals - Cranbury $4,082,470 10/20/2005 132 128 360
211 MSMC 00 Xxxx 00xx Xxxxxx $4,081,595 10/28/2005 120 116 360
214 MSMC Murrieta Village Center $3,900,000 10/25/2005 120 116 360
215 MSMC Walgreens - Broad River $3,687,078 11/28/2005 120 117 360
000 XXXX Xxxxx Xxxx Xxxxx $3,650,000 10/25/2005 120 116 360
217 MSMC TW Metals - Atlanta $3,634,394 10/20/2005 132 128 360
218 MSMC Northern Plaza $3,600,000 09/30/2005 120 115 360
219 MSMC Food World Pensacola $3,595,032 06/30/2005 120 112 360
223 MSMC Acacia Xxxx Apartments $3,500,000 01/20/2006 120 119 360
224 MSMC Walgreens - Delray Beach $3,500,000 12/15/2005 72 70 360
225 MSMC Napa Pointe Industrial Building $3,500,000 08/23/2005 120 114 360
226 MSMC Advanced Circuits $3,414,592 11/10/2005 180 177 360
229 MSMC Tuxedo Atrium $3,341,133 09/01/2005 120 115 360
230 MSMC Purdue Student Housing $3,200,000 10/26/2005 120 116 360
000 XXXX Xxxxxxx Xxxxx Xxxxxx Xxxx $3,200,000 10/31/2005 60 56 360
232 MSMC Common Street Professional Building $3,192,711 12/05/2005 120 118 360
234 MSMC CVS Ground Lease $3,076,218 11/09/2005 120 117 360
235 MSMC Oxford Square Shopping Center $3,071,550 06/30/2005 60 52 360
236 MSMC Blue Willow Shopping Center $3,000,000 11/04/2005 120 117 360
237 MSMC Beacon Commons $3,000,000 12/08/2005 120 118 360
238 MSMC Red Bank Shopping Center $2,900,000 10/21/2005 120 116 360
241 MSMC The Crossings of Fountain Hills $2,887,079 10/20/2005 120 116 360
243 MSMC Shoppes at Xxxxx Landing $2,831,120 11/09/2005 120 117 360
000 XXXX Xxxxxxxxx - Xxxxxx XX $2,800,000 09/27/2005 60 55 IO
246 MSMC Lancaster Restaurant $2,787,571 10/06/2005 120 116 360
248 MSMC 0000 Xxxxxxx Xxxxx Xxxxxxx $2,737,586 10/20/2005 120 116 360
000 XXXX Xxxxxxx Xxxxxx $2,720,000 08/31/2005 120 114 360
000 XXXX Xxxxxxxx Xxxxx II North $2,703,653 12/05/2005 120 118 360
251 MSMC Xxxx Plaza $2,685,051 09/22/2005 120 115 360
252 MSMC Bellefonte/Xxxxx Apartments $2,664,000 08/31/2005 120 114 360
000 XXXX Xxxx Xxxx Commercial Condominiums $2,600,000 01/17/2006 120 119 360
000 XXXX Xxxxxxxxxxx Xxxxxxx $2,587,144 12/30/2005 120 118 240
259 MSMC Verizon and Mattress Firm Pad Building $2,500,000 09/29/2005 120 115 360
260 MSMC Brookside Retirement Residence $2,494,259 12/29/2005 120 118 360
000 XXXX Xxxxx Xxxxx Xxxxxxxx Xxxxxx $2,492,067 12/09/2005 120 118 300
262 MSMC TW Metals - Cincinnati $2,489,170 10/20/2005 120 116 360
264 MSMC Washington Park - Office Depot $2,400,000 09/16/2005 120 115 360
265 MSMC Phoenix Center $2,394,379 12/02/2005 120 118 360
268 MSMC 000 Xxxx Xxxxx Xxxxxx $2,342,297 11/29/2005 120 117 360
269 MSMC 00 Xxxxx Xxxxxx Office $2,308,710 08/29/2005 120 114 360
270 MSMC Walgreens - Summerville $2,284,161 08/25/2005 120 114 360
272 MSMC Commerce Bank $2,242,708 11/30/2005 120 117 360
273 MSMC 000 Xxxxxxx Xxxxx $2,200,000 08/22/2005 120 114 240
274 MSMC Xxxxxxxx/Hobart Apartments $2,184,000 08/31/2005 120 114 360
275 MSMC Victory View Industrial Building I $2,100,000 12/08/2005 120 118 360
000 XXXX Xxxx Xxxxxx Industrial $2,063,432 12/22/2005 120 118 300
282 MSMC Washington Park - Washington Mutual $1,940,000 09/16/2005 120 115 360
284 MSMC Londonderry Shopping Center $1,900,000 09/16/2005 120 115 360
290 MSMC Shops at Sun Ranch $1,750,000 11/01/2005 120 116 360
294 MSMC Creekside MHC $1,590,967 09/22/2005 120 115 360
302 MSMC Sudbrook Shopping Center $1,266,536 08/26/2005 120 114 360
303 MSMC Park Manor Apartments $1,241,408 08/24/2005 120 114 360
000 XXXX Xxxxxxxxxx Xxxxxx Building $1,075,000 12/30/2005 120 118 300
000 XXXX Xxxxxxxxxx Xxxxxxx Apts $1,061,657 11/21/2005 120 117 360
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to Purchaser of the Mortgage Loans, Seller had good title to, and
was the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. Upon the
consummation of the transactions contemplated by this Agreement, Seller will
have validly and effectively conveyed to Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance. The sale of the Mortgage Loans
to Purchaser or its designee does not require Seller to obtain any governmental
or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of Trustee
is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted
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living facility, the Mortgagor's personal property includes all personal
property that a prudent mortgage lender making a similar Mortgage Loan would
deem reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement has been
filed and/or recorded in all places necessary to perfect a valid security
interest in such personal property, to the extent a security interest may be so
created therein, and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such personal
property, any personal property leases applicable to such personal property and
any Permitted Encumbrances. Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below and
any Permitted Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to occupy,
use or possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases not included in a Mortgage
has been executed and delivered in favor of Trustee and is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest in,
to and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since February 28, 2006.
7. Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property is, to Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan, and (ii) with respect to the
Mortgaged Properties securing the Mortgage Loans that were not the subject of an
engineering report within 18 months
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prior to the Cut-Off Date as set forth on Schedule A to this Exhibit 2, each
Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor have
been established) and each Mortgaged Property is free of structural defects, in
each case, that would materially and adversely affect its value as security for
the related Mortgage Loan as of the date hereof. Seller has received no notice
of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage Loan,
(x) all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the Title Policy referred
to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, (y) no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy or
a pro forma or marked-up title insurance commitment (on which the required
premium has been paid) which evidences such title insurance policy (the "Title
Policy") in the original principal amount of the related Mortgage Loan after all
advances of principal. Each Title Policy insures that the related Mortgage is a
valid first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of Trustee without the consent
of, or notice to, the insurer. To Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose that were to have been complied with on or before the Closing
Date have been complied with, or any such funds so escrowed have not been
released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
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11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous assessment,
was performed with respect to each Mortgaged Property in
connection with the origination or the sale of the related
Mortgage Loan, a report of the most recent assessment with respect
to each Mortgaged Property (an "Environmental Report") has been
delivered to Purchaser, and Seller has no knowledge of any
material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local
environmental laws and regulations. Where such Environmental
Report disclosed the existence of a material and adverse
environmental condition or circumstance affecting any Mortgaged
Property, (i) a party not related to the Mortgagor was identified
as the responsible party for such condition or circumstance or
(ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated or (iii)
the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in
light of the circumstances and/or to establish an operations and
maintenance plan. In connection with the origination of each
Mortgage Loan, each environmental consultant has represented in
such Environmental Report or in a supplement letter that the
environmental assessment of the applicable Mortgaged Property was
conducted utilizing generally accepted Phase I industry standards
using the American Society for Testing and Materials (ASTM)
standards. Each Mortgage Loan set forth on Schedule C to this
Exhibit 2 (each, a "Schedule C Loan") is the subject of a Secured
Creditor Impaired Property Policy, issued by the issuer set forth
on Schedule C (the "Policy Issuer") and effective as of the date
thereof (the "Environmental Insurance Policy"). Except as set
forth on Schedule A to this Exhibit 2, with respect to each
Schedule C Loan, (i) to Seller's knowledge, the Environmental
Insurance Policy is in full force and effect, (ii)(a) a property
condition or engineering report was prepared with respect to lead
based paint ("LBP") and radon gas ("RG") at each Mortgaged
Property that is used as a multifamily dwelling, and with respect
to asbestos containing materials ("ACM") at each related Mortgaged
Property and (b) if such report disclosed the existence of a
material and adverse LBP, ACM or RG environmental condition or
circumstance affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified condition
prior to closing the Mortgage Loan or provide additional security,
or
2-4
establish with the lender a reserve from loan proceeds, in an
amount deemed to be sufficient by Seller for the remediation of
the problem and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of
the Mortgage Loan, (iii) on the effective date of the
Environmental Insurance Policy, Seller as originator had no
knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than the
existence of LBP, ACM or RG) that was not disclosed to the Policy
Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the
Policy Issuer or (c) an engineering or other report provided to
the Policy Issuer and (iv) the premium of any Environmental
Insurance Policy has been paid through the maturity of the
policy's term and the term of such policy extends at least five
years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2, (i)
no Hazardous Material is present on such Mortgaged Property such
that (1) the value, use or operation of such Mortgaged Property is
materially and adversely affected or (2) under applicable federal,
state or local law, (a) such Hazardous Material could be required
to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred or (b) the
presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein,
to liability for the cost of eliminating such Hazardous Material
or the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not
have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. XX.XX. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
XX.XX. 6901 et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. XX.XX. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. XX.XX. 1251 et seq.),
the Clean Air Act (42 U.S.C. XX.XX. 1251 et seq.) and any
regulations promulgated pursuant thereto.
2-5
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of Leases
and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor or any guarantor of any
non-recourse exceptions and environmental liability is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the improvements located at the
Mortgaged Property, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and the policy contains no provisions for a deduction for depreciation; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to twelve months of operations of the Mortgaged Property estimated as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards and the Federal Emergency Management Agency
requires flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by commercial
mortgage lenders for properties of similar types and in any event not less than
$1 million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan. For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either: (i) a
seismic report which indicated a PML of less than 20% was prepared, based on a
450 or 475-year lookback with a 10% probability of exceedance in a 50-year
period, in
2-6
connection with the origination of the Mortgage Loan secured by such Mortgaged
Property or (ii) the improvements for the Mortgaged Property are insured against
earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered delinquent or unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate
in real estate or, if the related Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease" which term shall include any related estoppel letter
or lender protection agreement between Seller and related lessor), by the
related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such Ground
Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease since the
origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part
of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required for assignment to Purchaser, it has been obtained prior
to the Closing Date) and is further assignable by Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto,
Seller has received no notice that an event of default has
occurred thereunder, and, to Seller's knowledge, there exists no
condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
2-7
(v) Such Ground Lease (A) requires the lessor under such Ground Lease
to give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given
under such Ground Lease is effective against the holder of the
Mortgage unless a copy of such notice has been delivered to such
holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary
from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the
lessee thereunder for any reason, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at
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the date the Mortgage Loan was originated, at least equal to 80 percent of the
original principal balance of the Mortgage Loan or (ii) at the Closing Date, at
least equal to 80 percent of the principal balance of the Mortgage Loan on such
date; provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (x) the amount of any lien on the
real property interest that is senior to the Mortgage Loan and (y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in clauses
(a)(i) and (a)(ii) of this paragraph 19 shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans); or (b) substantially all the proceeds of
such Mortgage Loan were used to acquire, improve or protect the real property
that served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or is exempt
from) all applicable usury laws and any other applicable material laws in effect
at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged
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Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a predetermined or objectively
determinable release price and prepayment consideration in connection therewith.
Except as described in the first sentence hereof and for those Mortgage Loans
identified on Schedule A, no Mortgage Loan permits the full or partial release
or substitution of collateral unless the mortgagee or servicer can require the
Borrower to provide an opinion of tax counsel to the effect that such release or
substitution of collateral (a) would not constitute a "significant modification"
of such Mortgage Loan within the meaning of Treas. Reg. ss.1.1001-3 and (b)
would not cause such Mortgage Loan to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or shared appreciation feature or
provides for negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the Anticipated Repayment Date)
or for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property. Neither Seller nor any affiliate
thereof has any obligation to make a capital contribution to the Mortgagor under
the Mortgage Loan or otherwise.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller elsewhere in this Exhibit 2 or the exceptions listed in Schedule A
attached hereto.
28. Inspections. Seller (or if Seller is not the originator, the originator of
the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. Seller has no
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knowledge that any of the Mortgaged Properties is encumbered by any lien (other
than a Permitted Encumbrance) junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are
no actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence that
it customarily performs in the origination of comparable mortgage loans, as of
the date of origination of each Mortgage Loan or as of the date of the sale of
the related Mortgage Loan by Seller hereunder, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED LIVING
FACILITY].
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in
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and operation of such Mortgaged Property or Properties, or any indebtedness
other than as permitted by the related Mortgage(s) or the other related Mortgage
Loan documents, that it has its own books and records and accounts separate and
apart from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until
the date that is at least two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Authorized to do Business. To the extent required under applicable law as
of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
42. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
43. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is
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covered by a separate terrorism insurance policy. With respect to each other
Mortgage Loan, the related all risk insurance policy and business interruption
policy did not as of the date of origination of the Mortgage Loan, and, to
Seller's knowledge, do not, as of the date hereof, specifically exclude Acts of
Terrorism from coverage, or if such coverage is excluded, it is covered by a
separate terrorism insurance policy. With respect to each of the Mortgage Loans,
the related Mortgage Loan documents do not waive or prohibit the mortgagee from
requiring coverage for acts of terrorism or damages related thereto, except to
the extent that any right to require such coverage may be limited by
commercially reasonable availability, or as otherwise indicated on Schedule A.
44. Operating Statements and Rent Rolls. In the case of each Mortgage Loan,
the related Mortgage Loan documents require the related Mortgagor, in some cases
at the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except in
certain cases if the Mortgage Loan has an outstanding principal balance of less
than or equal to $3,500,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases, the Mortgage Loan
documents require the Mortgagor, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Mortgagor
annually), and such other information as may be required therein.
45. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a) (but without regard to the rule in Treasury Regulation Sections
1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as a
qualified mortgage, or any substantially similar provision).
46. No Fraud in Origination. A court of competent jurisdiction will not find,
in a final non-appealable judgment, that an employee of Seller actively
participated with the Borrower in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Borrower is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan, and such appraisal satisfied the
guidelines in Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as in effect on the date such Mortgage Loan was
originated.
48. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 48 are made solely for the
purpose of determining whether the Mortgaged Property, if acquired by the Trust,
would qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code, and may not be relied upon or used for any other purpose. Such
representations shall not be construed as a guarantee to any degree that
defaults or losses will not occur.
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49. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots containing no other property, or is subject to an endorsement
under the related Title Policy insuring same, or an application for the creation
of separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such tax lots shall be effective for the
next tax year.
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Schedule A to Exhibit 2
2006-HQ8 - Xxxxxx Xxxxxxx Mortgage Capital Inc.
Schedule A: Representation Exceptions
REP. 14. Insurance.
With respect to each of the following Mortgage Loans, the loan documents do not
require the insurer to give prior notice of the reduction of the amount of
coverage of the insurance policies:
No. ___, Comerica Tower;
No. ___, Xxxx Theaters; and
No. ___, Brookside Xxxxxxx Retirement Residence.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, the Mortgage
requires that insurance proceeds be used either to restore the damaged property
or applied to the debt, subject to the terms of the condominium documents and/or
the ground leases that affect such property. Accordingly, the condominium
documents for the Xxxx-Xxxxxxx, Central Park hotel provide that if 75% or more
of the property is destroyed or rendered uninhabitable and owners of 75% or more
of the applicable interests in the common elements do not agree to restore the
property, then the property shall be subject to an action for partition and the
insurance proceeds and proceeds from any sale will be held in a fund to be
distributed to each unit owner in proportion to each unit's common area interest
after the repayment of all mortgages on such units. The condominium documents
provide that the borrower (as the hotel unit owner) shall have the right of
first refusal to acquire the residential units if 75% of the unit owners do not
elect to restore.
In the event of a casualty to the Xxxx-Xxxxxxx, Central Park hotel that
causes damage to the extent that the improvements cannot, under applicable
zoning laws, be restored to a size and/or configuration comparable to the size
and/or configuration of such improvements immediately prior to such casualty,
the Central Park ground lease provides that the ground lessor may require the
borrower (i) to purchase the related fee interests for a purchase price equal to
$82,500,000 (increasing by $1,000,000 each year, up to a maximum purchase price
of $87,500,000) or (ii) to restore the improvements consistent with the type and
size improvements that can be constructed under applicable zoning laws. In the
event the borrower is required to purchase the fee interest, the ground lease
requires that a portion of the insurance proceeds from such casualty be applied
by the borrower to such purchase price. The Mortgage requires the borrower to
thereafter repay to the lender the lesser of (i) the amount of insurance
proceeds applied to such purchase price or (ii) the amount by which the
allocated loan amount for the Central Park hotel exceeds 70% of the fair market
value of such property as of the purchase of such fee interests by the borrower.
Such obligation is guaranteed by Millennium Partners LLC, the recourse guarantor
for the loan. As of January 1, 2006, the appraised value of the fee interests
related to the Xxxx-Xxxxxxx, Central Park was $110,000,000.
With respect to Mortgage Loan No. ___, Home Depot - Jamaica, New York, the
borrower is not required to maintain the insurance that the Mortgage
contemplates in most circumstances.
Instead, a separate Ground Sublease contains the provisions governing insurance,
which do not satisfy all of the requirements this representation 14
contemplates.
With respect to Mortgage Loan No. ___, Shillington Plaza, the lender is not the
loss payee under the casualty policy carried by Giant Foods relating to the
Giant Foods building and the gas station. Instead, the tenant, rather than the
borrower/ landlord, carries insurance and has the right to receive the proceeds,
although it has an obligation to rebuild unless the casualty is substantial.
Mortgage Loan No. ___, Chestnut Pointe, does not specifically require the
borrower to obtain insurance of the type and in the amounts that this
representation contemplates. However, the loan documents require the borrower to
maintain insurance coverages and endorsements in form and substance and in
amounts as the lender may require in its reasonable discretion, from time to
time.
Several of the Mortgage Loans do not require the insurance to name the lender as
an additional insured, although the insurance policies must provide that all
proceeds shall be payable to the lender as set forth in the respective loan
agreement.
With respect to several of the Mortgage Loans, if the net proceeds from
insurance do not exceed a certain net proceeds availability threshold amount,
then the net proceeds will be disbursed directly to the borrower, provided
certain conditions are met, without an express requirement to apply the net
proceeds to restoration of the Mortgaged Property. Nevertheless, the loan
documents contain an independent covenant on the part of the borrower to repair
and restore the Mortgaged Property.
REP. 17. Leasehold Estate.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, the following
exceptions apply:
Rep 17(ii): The Xxxx-Xxxxxxx, Central Park ground lease is subject to the
condominium documents affecting the Xxxx-Xxxxxxx, Central Park hotel. Also, the
Xxxx-Xxxxxxx, Battery Park ground lease is subject to the condominium documents
affecting the Xxxx-Xxxxxxx, Battery Park hotel and the Master Lease, Master
Sublease and Hotel Unit Lease (as defined in the loan documents).
Rep 17(iii): The Xxxx-Xxxxxxx, Battery Park ground lease provides that the
consent of the ground lessor is not required in connection with the acquisition
of the borrower's interest in the hotel unit and the Hotel Unit Sublease by the
lender, its nominee or by a Qualified Developer, through the foreclosure of the
mortgage or through a deed or instrument of transfer delivered in lieu of such
foreclosure. Any lender who has succeeded to the lessee's interest in the hotel
unit and the borrower's interest under the Hotel Unit Sublease shall have the
right to sell, transfer or assign its interest in the hotel unit and the Hotel
Unit Sublease to a Qualified Developer. A "Qualified Developer" means a person
that possesses the experience, qualifications and financial resources necessary
for the proper performance of the lessee's obligations under the Hotel Unit
Sublease and who is otherwise approved by the ground lessor, which approval
shall not be unreasonably withheld or delayed.
Rep 17(viii): The condominium documents for the Xxxx-Xxxxxxx, Central Park
hotel provide that if 75% or more of the property is destroyed or rendered
uninhabitable, by condemnation or casualty, and owners of 75% or more of the
applicable interests in the common elements do not agree to restore the
property, then the property shall be subject to an action for partition and the
net condemnation award, insurance proceeds and proceeds from any sale will be
held in a fund to be distributed to each unit owner in proportion to each unit's
common area interest after the repayment of all mortgages on such units. The
borrower (as the hotel unit owner) shall have the right of first refusal to
acquire the residential units if 75% of the unit owners do not elect to restore.
In the event of a casualty to the Xxxx-Xxxxxxx, Central Park hotel that
causes damage to the extent that the improvements cannot, under applicable
zoning laws, be restored to a size and/or configuration comparable to the size
and/or configuration of such improvements immediately prior to such casualty,
the Central Park ground lease provides that the ground lessor may require the
borrower (i) to purchase the related fee interests for a purchase price equal to
$82,500,000 (increasing by $1,000,000 each year, up to a maximum purchase price
of $87,500,000) or (ii) to restore the improvements consistent with the type and
size improvements that can be constructed under applicable zoning laws. In the
event the borrower is required to purchase the fee interest, the ground lease
requires that a portion of the insurance proceeds from such casualty be applied
by the borrower to such purchase price. The Mortgage requires the borrower to
thereafter repay to the lender the lesser of (i) the amount of insurance
proceeds applied to such purchase price or (ii) the amount by which the
allocated loan amount for the Central Park hotel exceeds 70% of the fair market
value of such property as of the purchase of such fee interests by the borrower.
Such obligation is guaranteed by Millennium Partners LLC, the recourse guarantor
for the loan. As of January 1, 2006, the appraised value of the fee interests
related to the Xxxx-Xxxxxxx, Central Park was $110,000,000.
In the event of a condemnation to the Xxxx-Xxxxxxx, Central Park hotel,
the ground lease provides that before any payments from a casualty are made to
the lender, the lessor is to be paid an amount equal to the Casualty Purchase
Price.
In the event of a condemnation to the Xxxx-Xxxxxxx, Battery Park hotel,
the Hotel Unit Sublease provides that before any payments are made to the
lender, the lessor is to be paid an amount attributable to the value of the land
taken, and the value of lessor's civic facilities and other site improvements
made by lessor.
With respect to Mortgage Loan No. ___, Westfield Shops, the Ground Lease has an
original term that extends only five years beyond the maturity date of the loan.
Furthermore, the Ground Lease is for unimproved land and does not contain
insurance provisions.
With respect to Mortgage Loan No. ___, 000 Xxxxx Xxxxxxxxx, the Ground Lease
does not expressly contain a covenant of quiet enjoyment, although such a
covenant may be implied by law.
REP. 25. Release of Mortgaged Property.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, and after the
second anniversary of the REMIC "start up" day, any hotel in the Xxxx-Xxxxxxx
Portfolio property (other than the Xxxx-Xxxxxxx, Central Park hotel) may be
released through a partial defeasance of the Loan in an amount equal to 125% of
the allocated loan amount of the property to be released provided, among other
things, (a) no event of default is then occurring, (b) the debt service coverage
ratio immediately following the release must be at least equal to the debt
service coverage ratio immediately prior to such release and (c) the borrower
repays the amount, if any, of any prior advances made under the Marriott
Guarantee as may be required under the Marriott Guarantee in connection with the
sale of such property.
The borrower may also obtain a partial release with respect to (i) prior
to the second anniversary of the REMIC "start up" day, the Xxxx-Xxxxxxx, Boston
and (ii) at any time during the loan term, certain rooms within the property
that the borrower may elect to convert to residential ownership ("Conversion
Rooms") provided that, among other things, (A) (1) with respect to the
Xxxx-Xxxxxxx, Boston, the borrower prepays the loan in an amount equal to the
allocated loan amount with respect to such property and (2) with respect to any
Conversion Rooms, the borrower prepays the loan in an amount equal to 115% of
the amount by which the appraised value of the applicable hotel is projected to
be reduced by the release of such Conversion Rooms (such reduction to be in no
event less than a pro rata amount of such hotel's allocated loan amount based on
the number of Conversion Room as compared to the total number of rooms in such
hotel), (B) the borrower pays a yield maintenance premium with respect to the
amount described in the preceding clause (A), (C) the debt service coverage
ratio immediately following the release must be at least equal to the debt
service coverage ratio immediately prior to such release, (D) in no event shall
the aggregate amount prepaid with respect to Conversion Rooms exceed
$75,000,000, (E) in no event shall Conversion Rooms consist of more than 50% of
the rooms at the applicable hotel or be located at the Xxxx-Xxxxxxx, Central
Park and (F) any Conversion Rooms shall consist of one or more units in a
validly created condominium regime for the applicable property that are legally
separate from the remaining Xxxx-Xxxxxxx Portfolio property.
Mortgage Loan No. ___, Crossroads Logistics Portfolio, permits the borrower, at
any time that the borrower may defease the Crossroads Logistics Portfolio
property in whole, to partially defease the loan and obtain a release of the
relevant Crossroads Logistics Portfolio property (other than the "Girls School"
property) provided certain conditions are met, including: (i) delivery of
defeasance collateral in the amount of 115% of the allocated amount with respect
to the released parcel, (ii) the debt service coverage ratio with respect to the
remaining property shall be at least 1.18:1.00, and (iii) delivery of a rating
agency confirmation of no withdrawal or downgrade of the ratings of the REMIC
securities on account of the partial defeasance. The borrower has a one-time
right to substitute any one of the Crossroads Logistics Portfolio properties
(other than the "Girls School" property) with another property, without any
required prepayment of the loan, provided the borrower satisfies certain
conditions, including an appraised fair market value of the replacement property
of not less than 105% of the fair market value of the released property; a net
operating income of the replacement property equal to not less than 105% of the
net operating income of the released property; a debt service coverage ratio of
all properties after the substitution of not less than the greater of the debt
service coverage
ratio prior to the substitution, or 1.18x; and delivery of a rating agency
confirmation of no withdrawal or downgrade of the ratings of the REMIC
securities on account of the release.
Mortgage Loan No. ___, Marketplace at Northglenn, permits the borrower to
partially defease the loan and to obtain the release of up to six designated
outparcels, provided certain conditions are met, including: (i) delivery of
defeasance collateral in the amount of 125% of the allocated loan amount with
respect to the released parcel, (ii) the debt service coverage ratio with
respect to the remaining property shall be at least 1.25:1.00, (iii) the
loan-to-value ratio with respect to the remaining property shall not exceed 65%,
and (iv) delivery of a rating agency confirmation of no withdrawal or downgrade
of the ratings of the REMIC securities on account of the partial defeasance.
Mortgage Loan No. ___, Roseville Portfolio, permits the borrower to partially
defease the loan and to obtain the release of any of the Stoneview Office
property, Fairway Commons II property or Eureka Ridge property, provided certain
conditions are met, including: (i) delivery of defeasance collateral in the
amount of 125% of the allocated loan amount with respect to the released parcel,
(ii) the debt service coverage ratio with respect to the remaining property
shall not be less than the great of (y) debt service coverage ratio as of the
date immediately preceding the partial defeasance, or (z) 1.25:1.00, (iii) the
loan-to-value ratio with respect to the remaining property shall be equal to or
less than the lesser of (y) the loan-to-value ratio prior to the partial
defeasance or (z) 80%, and (iv) delivery of a rating agency confirmation of no
withdrawal or downgrade of the ratings of the REMIC securities on account of the
partial defeasance.
Mortgage Loan Nos. __ -___, Castleton Retail Portfolio, are three
cross-collateralized loans, each of which permits the borrower to defease the
individual loan and to obtain the release of the relevant Mortgaged Property,
provided certain conditions are met, including delivery of defeasance collateral
in the amount of 125% of the outstanding amount of the loan that is being
defeased.
With respect to Mortgage Loan No. ___, Comerica Tower, the lender is required to
release part of the unimproved mortgaged property without payment upon the
satisfaction of certain conditions; the lender or servicer cannot require the
borrower to provide an opinion of tax counsel upon the partial release.
Mortgage Loan No. __ - ___, Island @Carlsbad, permits the release of portions of
the Mortgaged Property without payment, provided that certain conditions are
met, including, if the remaining property is a designated outparcel: (i) the
debt service coverage ratio with respect to the remaining property shall be at
least 1.25:1.00 and (ii) the loan-to-value ratio with respect to the remaining
property shall not exceed 65%.
Mortgage Loan No. __, Crate and Barrel Headquarters, permits the borrower,
without payment, provided certain conditions are met, to bifurcate the ground
lease on the Mortgaged Property and obtain the release of two parcels of the
Mortgaged Property designated as vacant unimproved parcels.
Each of the following Mortgage Loans permits the release of unimproved parcels
that are part of the Mortgaged Property without payment under certain
conditions:
No. ___, Lackawanna Station Plaza;
No. ___, Northrop Grumman;
No. ___, Charleston Pines Apts;
No. ___, 000 Xxxxx Xxxxxx;
No. ___, Food World Pensacola; and
No. ___, Walgreens - Summerville.
REP. 29. Local Law Compliance.
With respect to Mortgage Loan No. ___, East 74th St., the Mortgaged Property may
not comply with the use restrictions imposed by local zoning rules. The
commercial space is used a jewelry distributor instead of a permitted "medical"
use. The sponsor of the Mortgage Loan has indemnified the lender for losses on
account of noncompliance.
With respect to Mortgage Loan No. ___, 000 Xxxxxxxxxx Xxxxxx, the Mortgaged
Property does not have the required certificate of occupancy. The related
guaranty of recourse obligations includes any liability or obligation arising
out of violations of local law.
With respect to Mortgage Loan No. ___, Phoenix Center Retail, the Mortgaged
Property may not comply with parking requirements. The lender believes that the
parking is one space short of the number of spaces required by local zoning
rules.
With respect to Mortgage Loan No. ___, Willow Court Industrial, the Mortgaged
Property may not comply with parking requirements.
With respect to Mortgage Loan No. ___, Aspen Center, the Mortgaged Property does
not comply with local municipal ordinances due to three tenants occupying more
than 1000 square feet each without the benefit of a special permit.
REP. 30. Junior Liens.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, each hotel is
encumbered by a subordinate mortgage from the borrower in favor of Marriott
securing the Marriott Guarantee, as defined in the relevant loan documents.
REP. 33. Licenses and Permits.
With respect to Mortgage Loan No. ___, Aspen Center, the Mortgaged Property does
not comply with local municipal ordinances due to three tenants occupying more
than 1000 square feet each without the benefit of a special permit.
REP 36. Due on Sale (encumbrance).
Each of the following Mortgage Loans permits the parent of the borrower to
obtain future mezzanine financing, provided certain conditions are met:
No. ___ Marketplace at Northglenn;
No. ___ Ladera Center;
No. ___ 2200 and 0000 Xxxxxxxxx Xxxxx;
No. ___ Woodholme Medical Plaza;
No. ___ Bel Air Town Center;
No. ___ The Market at Lake Houston;
No. ___ Old Grove Marketplace;
No. ___ Brier Creek Shopping Center;
No. ___ 000 Xxxxxxxx;
No. ___ Hampton Inn Rochester;
No. ___ 000 Xxxxx Xxxxxx;
No. ___ Sky View Apartments;
No. ___ Washington Park - Circuit City;
No. ___ Washington Park - Sten Mart;
No. ___ Brunos Auburn;
No. ___ 00 Xxxx 00xx Xxxxxx;
No. ___ Xxxxxxxxx Village Center;
No. ___ Olive Tree Plaza;
No. ___ Food World Pensacola;
No. ___ Washington Park - Office Depot; and
No. ___ Washington Park - Washington Mutual.
Each of the following Mortgage Loans currently has mezzanine financing in place:
No. ___ Powers Industrial Portfolio - Mezzanine;
No. ___ Roseville Portfolio - Mezzanine; and
No. ___ Dakota Ridge Apts. - Mezzanine.
REP. 38. Non-Recourse Exceptions.
Each of the following Mortgage Loans is not recourse to a natural person, nor is
any natural person liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the borrower,
misappropriation of rents, insurance proceeds or condemnation awards, or
breaches of the environmental covenants in the Mortgage Loan documents:
No. ___, Xxxx-Xxxxxxx Portfolio;
No. ___, Marketplace at Northglenn;
No. __, Westfield Shops;
No. __, City Avenue Shopping Center;
No. __, Moorestown Shopping Center;
No. __, The Market at Lake Houston;
No. __, Windcrest Apartments (for environmental only);
No. __, 000 Xxxxx Xxx Xxxxxxx Xxxxxxx (for environmental only);
No. __, Biltmore Residence Inn;
No. __, TW Metals - Chicago;
No. __, Washington Park - Circuit City;
No. __, 000&0000 Xxxxx Xxxxxxx;
No. __, Washington Xxxx - Xxxxx Mart;
No. __, TW Metals - Cranbury;
No. __, TW Metals - Atlanta;
No. __, Advanced Circuits Building;
No. __, Shoppes at Xxxxx Landing;
No. __, Washington Park - Office Depot;
No. __, Washington Park - Washington Mutual; and
No. __, Creekside MHP.
With respect to Mortgage Loan No. [__], Woodholme Medical Center, the guarantor
is liable to the holder of the Mortgage Loan for damages arising in the case of
misappropriation of rents only to the extent arising after an event of default.
REP. 43. Terrorism Insurance.
With respect to Mortgage Loan No. ___, Marketplace at Northglenn, the borrower
is required to maintain terrorism insurance only to the extent obtainable for a
maximum annual premium equal to 125% of the premium for the all risk insurance
(excluding terrorism).
Mortgage Loan No. ___, CVS Ground Lease, is a land loan and the loan documents
do not require terrorism insurance coverage.
REP. 49. Tax Parcels.
The Mortgaged Property with respect to Mortgage Loan No. ___, 24 Hour Fitness,
does not comprise a separate tax lot.
Schedule B to Exhibit 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
-------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE
-------------------------------------------------------------------------------------------------------------------------
65 MSMC Castleton Retail Portfolio - Champaign Marketview Shopping Center (D) $6,856,763
66 MSMC Castleton Retail Portfolio - Castleton Square Pavilion (D) $6,537,844
67 MSMC Castleton Retail Portfolio - Castleton Square Marketplace (D) $5,042,910
-------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER BORROWER NAME SPONSOR
-------------------------------------------------------------------------------------------------------------------------
65 MSMC Champaign Marketview, LLC Xxxxxxx Xxxxxxx; Xxxxx Xxxxx
00 XXXX Xxxxxxxxx Xxxxxx Pavilion, LLC Xxxxxxx Xxxxxxx; Xxxxx Xxxxx
00 XXXX Xxxxxxxxx Xxxxxx Marketplace, LLC Xxxxxxx Xxxxxxx; Xxxxx Xxxxx
Schedule C to Exhibit 2
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $2,710,626,582
Less Expenses ($5,418,602)
--------------
Net Proceeds $2,705,207,980
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $1,127,301,958
Allocable Expense Amount for LaSalle Loans ($2,125,929)
--------------
Purchase Price of LaSalle Loans $1,125,176,029
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,583,323,721
Allocable Expense Amount for MS Loans ($3,292,674)
--------------
Purchase Price of MS Loans $1,580,031,048
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of March 17, 2006 (the "Mortgage Loan Purchase Agreement"),
between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit
3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this __ day of March, 2006.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx X Xxxxxx
------------------------------------
Name: Xxxxxxx X Xxxxxx
------------------------------
Title: Vice President
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X Xxxxxx
------------------------------------
Name: Xxxxxxx X Xxxxxx
------------------------------
Title: Vice President
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO U.S. BANK NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-HQ8
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of March 17, 2006 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), MSMC is selling certain multifamily and commercial mortgage loans
(the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), between the
Depositor, Xxxxx Fargo Bank National Association, as Master Servicer, X.X.
Xxxxxx Company, Inc. ("JER") as Special Servicer, LaSalle Bank National
Association, as Paying Agent and Certificate Registrar and U.S. Bank National
Association ("U.S. Bank") as Trustee, the Trustee and the Special Servicer are
granted certain powers, responsibilities and authority in connection with the
completion and the filing and recording of assignments of mortgage, deeds of
trust or similar documents, Form UCC-2 and UCC-3 assignments of financing
statements, reassignments of assignments of leases, rents and profits and other
Mortgage Loan documents required to be filed or recorded in appropriate public
filing and recording offices;
WHEREAS, MSMC has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMC does hereby make, constitute and appoint U.S. Bank,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, MSMC's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in MSMC's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with respect to the
Mortgage Loans which are customarily and reasonably necessary or appropriate to
assign agreements, documents and instruments pertaining to the Mortgage Loans,
in each case in favor of the Trustee as set forth in the definition of "Mortgage
File" in, and in accordance with Section 1.1 of, the Pooling and Servicing
Agreement, and to evidence, provide notice of and perfect such assignments and
conveyances in favor of the Trustee in the public records of the appropriate
filing and recording offices; and (ii) to file or record in the appropriate
public filing
5-1
or recording offices, all other Mortgage Loan documents to be recorded under the
terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents
which have not been submitted for filing or recordation by MSMC on or before the
date hereof or which have been so submitted but are subsequently lost or
returned unrecorded or unfiled as a result of actual or purported defects
therein, in order to evidence, provide notice of and perfect such documents in
the public records of the appropriate filing and recording offices.
Notwithstanding the foregoing, this Limited Power of Attorney shall grant to
U.S. Bank and JER only such powers, responsibilities and authority as are set
forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
MSMC does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
MSMC's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in MSMC's name, place and stead solely to exercise and perform all of the
rights, authority and powers of U.S. Bank as set forth in the preceding
paragraph in the event of the failure or the incapacity of U.S. Bank to do so
for any reason. As between JER and any third party, no evidence of the failure
or incapacity of U.S. Bank shall be required and such third party may rely upon
JER's written statement that it is acting pursuant to the terms of this Limited
Power of Attorney.
Article I.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMC's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMC might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMC agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMC, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMC's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
Article II.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMC and MSMC's successors and assigns.
Article III.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
Section 3.01 with respect to the Trustee, the termination of the
Trustee and its replacement with a successor Trustee under the terms
of the Pooling and Servicing Agreement;
Section 3.02 with respect to the Special Servicer, the termination of
the Special Servicer and its replacement with a successor Special
Servicer under the terms of the Pooling and Servicing Agreement;
Section 3.03 with respect to the Trustee, the appointment of a
receiver or conservator with respect to the business of the Trustee,
or the filing of a voluntary or involuntary petition in bankruptcy
by or against the Trustee;
Section 3.04 with respect to the Special Servicer, the appointment of
a receiver or conservator with respect to the business of the
Special Servicer, or the filing of a voluntary or involuntary
petition in bankruptcy by or against the Special Servicer;
Section 3.05 with respect to each of the Trustee and the Special
Servicer and any Mortgage Loan, such Mortgage Loan is no longer a
part of the Trust Fund;
Section 3.06 with respect to each of the Trustee and the Special
Servicer, the termination of the Pooling and Servicing Agreement in
accordance with its terms; and
Section 3.07 with respect to the Special Servicer, the occurrence of
an Event of Default under the Pooling and Servicing Agreement with
respect to the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of MSMC under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
Article IV.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
Article V.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, MSMC has caused this instrument to be executed and its
corporate seal to be affixed hereto by its officer duly authorized as of March
28, 2006.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx X Xxxxxx
--------------------------------
Name: Xxxxxxx X Xxxxxx
--------------------------------
Title: Vice President
--------------------------------
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 23rd day of March, 2006, before me appeared Xxxxxxx X. Xxxxxx, to
me personally known, who, being by me duly sworn did say that he is the Vice
President of Xxxxxx Xxxxxxx Mortgage Capital Inc., and that the seal affixed to
the foregoing instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed in behalf of said corporation by authority
of its board of directors, and said __________________ acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Xxxx Xxxxxxx
---------------------------------------
Notary Public
[Notary Stamp]
