Exhibit 10.2
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER,
CIBC INC.
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 21, 2006
$805,149,630
Fixed Rate Mortgage Loans
Series 2006-CIBC16
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
September 21, 2006, is between X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and CIBC Inc., as seller ("CIBC" or the
"Seller").
Capitalized terms used in this Agreement not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement dated as of
September 21, 2006 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Capmark Finance Inc., as master servicer
("Master Servicer"), Midland Loan Services, Inc., as special servicer ("Special
Servicer") and Xxxxx Fargo Bank, N.A., as trustee (in such capacity, the
"Trustee") and as paying agent (in such capacity, the "Paying Agent"), pursuant
to which the Purchaser will sell the Mortgage Loans (as defined herein) to a
trust fund and certificates representing ownership interests in the Mortgage
Loans will be issued by the trust fund. For purposes of this Agreement, the term
"Mortgage Loans" refers to the mortgage loans listed on Exhibit A and the term
"Mortgaged Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of the
Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage File.
Effective as of the Closing Date and upon receipt of the purchase price set
forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, all of
its right, title, and interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase and
Sale Agreement, dated as of September 1, 2006, between the Master Servicer and
the Seller) in and to the Mortgage Loans described in Exhibit A, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than payments of principal and interest first due on the
Mortgage Loans on or before the Cut-off Date). Upon the sale of the Mortgage
Loans, the ownership of each related Mortgage Note, the Mortgage and the other
contents of the related Mortgage File will be vested in the Purchaser and
immediately thereafter the Trustee and the ownership of records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller (other than the records and documents described in the
proviso to Section 3(a) hereof) shall immediately vest in the Purchaser and
immediately thereafter the Trustee. The Seller's records will accurately reflect
the sale of each Mortgage Loan to the Purchaser. The Depositor will sell the
Class X-0, Xxxxx X-0, Class A-3FL, Class X-0X, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class X-1, Class X-2, Class B, Class C and Class D
Certificates (the "Offered Certificates") to the underwriters specified in the
underwriting agreement dated September 14, 2006 (the "Underwriting Agreement")
between the Depositor and X.X. Xxxxxx Securities Inc. ("JPMSI") for itself and
as representative of CIBC World Markets Corp. ("CIBCWMC") and Wachovia Capital
Markets, LLC (together with JPMSI, and CIBCWMC, the "Underwriters"), and the
Depositor will sell the Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P and Class NR Certificates (the "Private
Certificates") to JPMSI, as the initial purchaser (together with the
Underwriters, the "Dealers") specified in the certificate purchase agreement,
dated September 14, 2006 (the "Certificate Purchase Agreement"), between the
Depositor and JPMSI.
The sale and conveyance of the Mortgage Loans is being conducted on an
arms-length basis and upon commercially reasonable terms. As the purchase price
for the Mortgage Loans, the Purchaser shall pay to the Seller or at the Seller's
direction $833,120,402 (which amount is inclusive of accrued interest) in
immediately available funds minus the costs set forth in Section 9 hereof. The
purchase and sale of the Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the Cut-off
Date. From and after the sale of the Mortgage Loans to the Purchaser, record
title to each Mortgage and the related Mortgage Note shall be transferred to the
Trustee in accordance with this Agreement. Any funds due after the Cut-off Date
in connection with a Mortgage Loan received by the Seller shall be held in trust
for the benefit of the Trustee as the owner of such Mortgage Loan and shall be
transferred promptly to the Trustee. All scheduled payments of principal and
interest due on or before the Cut-off Date but collected after the Cut-off Date,
and recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
The transfer of each Mortgage Loan shall be reflected on the Seller's
balance sheets and other financial statements as a sale of the Mortgage Loans by
the Seller to the Purchaser. The Seller intends to treat the transfer of each
Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the Purchaser's
balance sheets and other financial statements as the purchase of the Mortgage
Loans by the Purchaser from the Seller. The Purchaser intends to treat the
transfer of each Mortgage Loan from the Seller as a purchase for tax purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and (c)
of the Pooling and Servicing Agreement, and meeting all the requirements of such
Sections 2.01(b) and (c), and such other documents, instruments and agreements
as the Purchaser or the Trustee shall reasonably request and which are in the
Seller's possession or under the Seller's control. In addition, the Seller
agrees to deliver or cause to be delivered to the Master Servicer, the Servicing
File for each Mortgage Loan transferred pursuant to this Agreement; provided
that the Seller shall not be required to deliver any draft documents, privileged
or internal communications or credit underwriting or due diligence analyses or
data.
(b) With respect to the transfer described in Section 1 hereof, if the
Mortgage Loan documents do not require the related Mortgagor to pay any costs
and expenses relating to any modifications to a related letter of credit which
modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Purchaser as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the Master Servicer, consistent with its
obligations under the Pooling and Servicing Agreement, has exercised reasonable
efforts to collect such Transfer Modification Costs from such Mortgagor, in
which case the Master Servicer shall give the Seller notice of such failure and
the Seller shall pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller, concurrently
with the execution and delivery hereof, has conveyed to the Purchaser, all of
its right, title and interest in and to the Mortgage Loans. The parties intend
that such conveyance of the Seller's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale
and not a loan. If such conveyance is deemed to be a pledge and not a sale, then
the parties also intend and agree that the Seller shall be deemed to have
granted, and in such event does hereby grant, to the Purchaser, a first priority
security interest in all of its right, title and interest in, to and under the
Mortgage Loans, all payments of principal or interest on such Mortgage Loans due
after the Cut-off Date, all other payments made in respect of such Mortgage
Loans after the Cut-off Date (except to the extent such payments were due on or
before the Cut-off Date) and all proceeds thereof and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be a pledge and not a sale, the Seller consents to the Purchaser
hypothecating and transferring such security interest in favor of the Trustee
and transferring the obligation secured thereby to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the appropriate
public recording office for real property the intermediate assignments of the
Mortgage Loans and the Assignments of Mortgage from the Seller to the Trustee in
connection with the Pooling and Servicing Agreement. All recording fees relating
to the initial recordation of such intermediate assignments and Assignments of
Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser, the
Trustee or the Master Servicer, in order to assist and facilitate in the
transfer of the servicing of the Mortgage Loans to the Master Servicer,
including effectuating the transfer of any letters of credit with respect to any
Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of
Certificateholders. Prior to the date that a letter of credit with respect to
any Mortgage Loan is transferred to the Master Servicer, the Seller will
cooperate with the reasonable requests of the Master Servicer or Special
Servicer, as applicable, in connection with effectuating a draw under such
letter of credit as required under the terms of the related Mortgage Loan
documents; and
(c) if, during such period of time after the first date of the public
offering of the Offered Certificates as in the opinion of counsel for the
Underwriters, a prospectus relating to the Offered Certificates is required by
applicable law to be delivered in connection with sales thereof by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus Supplement, including Annex X-0,
X-0, X-0, B and D thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annex X-0, X-0, X-0, B
and D thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annex X-0, X-0, X-0, B and D
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus Supplement, including Annex X-0, X-0, X-0, B and D
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will comply with applicable law.
All terms used in this clause (c) and not otherwise defined herein shall have
the meaning set forth in the Indemnification Agreement, dated as of September
14, 2006 among the Purchaser, the Seller and the Dealers (the "Indemnification
Agreement").
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the Closing
Date that:
(i) it is a Delaware corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is duly qualified to transact business in the State of New
York. The Seller is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary so that a subsequent
holder of the related Mortgage Loan (including, without limitation, the
Purchaser) that is in compliance with the laws of such state would not be
prohibited from enforcing such Mortgage Loan solely by reason of any
non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller has been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents, (B) the execution and delivery by the Seller
or enforceability against the Seller of the Mortgage Loans or this
Agreement, or (C) the performance of the Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers) that may be entitled to any commission or
compensation in connection with the sale or purchase of the Mortgage Loans
or entering into this Agreement or (B) paid in full any such commission or
compensation;
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors; and
(xii) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser
(or with respect to any Companion 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 which the Purchaser is required to provide with respect to
the Seller in its capacity as a "sponsor" pursuant to Exhibit Y and
Exhibit Z of the Pooling and Servicing Agreement within the time periods
set forth in the Pooling and Servicing Agreement.
(b) The Purchaser represents and warrants to the Seller as of the Closing
Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument to which the Purchaser is a party or by which
it is bound, or (B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the Purchaser's property pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Secrecy Act, the United States Money Laundering Control Act of 1986
or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties as to the
Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
which representations and warranties are subject to the exceptions thereto set
forth in Exhibit C. Neither the delivery by the Seller of the Mortgage Files,
Servicing Files, or any other documents required to be delivered under Section
2.01 of the Pooling and Servicing Agreement, nor the review thereof or any other
due diligence by the Trustee, Master Servicer, Special Servicer, a Certificate
Owner or any other Person shall relieve the Seller of any liability or
obligation with respect to any representation or warranty or otherwise under
this Agreement or constitute notice to any Person of a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of a Mortgage
Loan, the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall, not
later than 90 days from the earlier of the Seller's receipt of the notice or, in
the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount (as defined below) in connection therewith;
provided, however, that, if such Breach or Defect is capable of being cured but
not within the Initial Resolution Period, and the Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, the Seller shall have an additional 90 days commencing
immediately upon the expiration of the Initial Resolution Period (the "Extended
Resolution Period") to complete such cure (or, failing such cure, to repurchase
the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described above); and provided, further, that with respect to the Extended
Resolution Period the Seller shall have delivered an officer's certificate to
the Trustee setting forth the reason such Breach or Defect is not capable of
being cured within the Initial Resolution Period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Breach or Defect will be cured within the Extended
Resolution Period. Notwithstanding the foregoing, any Defect or Breach which
causes any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) which causes a defective mortgage loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of the holders of the Certificates therein, and such
Mortgage Loan shall be repurchased or a Qualified Substitute Mortgage Loan
substituted in lieu thereof without regard to the extended cure period described
in the preceding sentence. If the affected Mortgage Loan is to be repurchased,
the Seller shall remit the Repurchase Price (defined below) in immediately
available funds to the Trustee.
If any Breach pertains to a representation or warranty that the related
Mortgage Loan documents or any particular Mortgage Loan document requires the
related Mortgagor to bear the costs and expenses associated with any particular
action or matter under such Mortgage Loan document(s), then Seller shall not be
required to repurchase such Mortgage Loan and the sole remedy with respect to
any Breach of such representation shall be to cure such Breach within the
applicable cure period (as the same may be extended) by reimbursing the Trust
Fund (by wire transfer of immediately available funds) the reasonable amount of
any such costs and expenses incurred by the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund that are the basis of such Breach and
have not been reimbursed by the related Mortgagor; provided, however, that in
the event any such costs and expenses exceed $10,000, the Seller shall have the
option to either repurchase or substitute for the related Mortgage Loan as
provided above or pay such costs and expenses. Except as provided in the proviso
to the immediately preceding sentence, the Seller shall remit the amount of such
costs and expenses and upon its making such remittance, the Seller shall be
deemed to have cured such Breach in all respects. To the extent any fees or
expenses that are the subject of a cure by the Seller are subsequently obtained
from the related Mortgagor, the portion of the cure payment equal to such fees
or expenses obtained from the Mortgagor shall be returned to the Seller pursuant
to Section 2.03(f) of the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to be
deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (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 with a copy of the Mortgage
Note 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
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro forma or specimen title insurance
policy) called for by clause (ix) of the definition of "Mortgage File" in the
Pooling and Servicing Agreement; (d) the absence from the Mortgage File of any
required letter of credit; (e) with respect to any leasehold mortgage loan, the
absence from the related Mortgage File of a copy (or an original, if available)
of the related Ground Lease; or (f) the absence from the Mortgage File of any
intervening assignments required to create a complete chain of assignments to
the Trustee on behalf of the Trust, unless there is included in the Mortgage
File a certified copy of the intervening assignment and a certificate stating
that the original intervening assignments were sent for recordation; provided,
however, that no Defect (except a Defect previously described in clauses (a)
through (f) above) shall be considered to materially and adversely affect the
value of the related Mortgage Loan, the related Mortgaged Property or the
interests of the Trustee or Certificateholders unless the document with respect
to which the Defect exists is required in connection with an imminent
enforcement of the Mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any borrower or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a commitment to issue a lender's title insurance policy, as
provided in clause (ix) of the definition of "Mortgage File" in the Pooling and
Servicing Agreement, in lieu of the delivery of the actual policy of lender's
title insurance, shall not be considered a Defect or Breach with respect to any
Mortgage File if such actual policy is delivered to the Trustee or a Custodian
on its behalf within 18 months from the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or substituted for
in the manner described in the first paragraph of this Section 6(e), (ii) such
Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect or Breach does
not constitute a Defect or Breach, as the case may be, as to any other Crossed
Loan in such Crossed Group (without regard to this paragraph), then the
applicable Defect or Breach, as the case may be, will be deemed to constitute a
Defect or Breach, as the case may be, as to each other Crossed Loan in the
Crossed Group for purposes of this paragraph, and the Seller will be required to
repurchase or substitute for all of the remaining Crossed Loans in the related
Crossed Group as provided in the first paragraph of this Section 6(e) unless
such other Crossed Loans in such Crossed Group satisfy the Crossed Loan
Repurchase Criteria and satisfy all other criteria for substitution and
repurchase of Mortgage Loans set forth herein. In the event that the remaining
Crossed Loans satisfy the aforementioned criteria, the Seller may elect either
to repurchase or substitute for only the affected Crossed Loan as to which the
related Breach or Defect exists or to repurchase or substitute for all of the
Crossed Loans in the related Crossed Group. The Seller shall be responsible for
the cost of any Appraisal required to be obtained to determine if the Crossed
Loan Repurchase Criteria have been satisfied, so long as the scope and cost of
such Appraisal has been approved by the Seller (such approval not to be
unreasonably withheld).
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan to be
repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan or REO
Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more Mortgage
Loans contemplated hereby, (i) the Purchaser shall execute and deliver, or cause
the execution and delivery of, such endorsements and assignments, without
recourse to the Trust, as shall be necessary to vest in the Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
the Seller of all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by the Trustee, or on the Trustee's behalf, and
(iii) the Purchaser shall release, or cause to be released, to the Seller any
escrow payments and reserve funds held by the Trustee, or on the Trustee's
behalf, in respect of such repurchased or replaced Mortgage Loans.
(f) The representations and warranties of the parties hereto shall survive
the execution and delivery and any termination of this Agreement and shall inure
to the benefit of the respective parties, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes or Assignment of Mortgage or the
examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of any
breach of a representation or warranty contained in this Section 6. The Seller's
obligation to cure any Breach or Defect or repurchase or substitute any affected
Mortgage Loan pursuant to Section 6(e) shall constitute the sole remedy
available to the Purchaser in connection with a Breach or Defect. It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes; provided, however, that no limitation of remedy is
implied with respect to the Seller's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser to
purchase the Mortgage Loans shall be subject to the satisfaction, on or prior to
the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed by it
at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Seller under this Agreement shall be true and correct in all
material respects as of the Closing Date, and no event shall have occurred as of
the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional closing
documents:
(i) copies of the Seller's certificate of incorporation and by-laws,
certified as of a recent date by the Assistant Secretary of the Seller;
(ii) a certificate as of a recent date of the Secretary of State of
the State of Delaware to the effect that the Seller is duly organized,
existing and in good standing in the State of Delaware;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(B) the Seller has the corporate power to conduct its business
as now conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the Seller, whether such enforcement is sought
in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's certificate of incorporation or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on the
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with the State of Delaware or
federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by this
Agreement and the Indemnification Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and sold
pursuant to the terms of the Underwriting Agreement. The Private Certificates
shall have been concurrently issued and sold pursuant to the terms of the
Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently herewith the
Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other certificates of
its officers or others and such other documents and opinions to evidence
fulfillment of the conditions set forth in this Agreement as the Purchaser and
its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the Mortgage
Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx LLP, New
York, New York, at 10:00 a.m., on the Closing Date or such other place and time
as the parties shall agree. The parties hereto agree that time is of the essence
with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata share (the Seller's
pro rata share to be determined according to the percentage that the aggregate
principal balance as of the Cut-off Date of all the Mortgage Loans represents in
proportion to the aggregate principal balance as of the Cut-off Date of all the
mortgage loans to be included in the Trust Fund) of all costs and expenses of
the Purchaser in connection with the transactions contemplated herein,
including, but not limited to: (i) the costs and expenses of the Purchaser in
connection with the purchase of the Mortgage Loans; (ii) the costs and expenses
of reproducing and delivering the Pooling and Servicing Agreement and this
Agreement and printing (or otherwise reproducing,) and delivering the
Certificates; (iii) the reasonable and documented fees, costs and expenses of
the Trustee and its counsel incurred in connection with the Trustee entering
into the Pooling and Servicing Agreement; (iv) the fees and disbursements of a
firm of certified public accountants selected by the Purchaser and the Seller
with respect to numerical information in respect of the Mortgage Loans and the
Certificates included in the Prospectus, any Free Writing Prospectus (as defined
in the Indemnification Agreement), the Memoranda (as defined in the
Indemnification Agreement) and any related 8-K Information (as defined in the
Underwriting Agreement), or items similar to the 8-K Information, including the
cost of obtaining any "comfort letters" with respect to such items; (v) the
costs and expenses in connection with the qualification or exemption of the
Certificates under state securities or blue sky laws, including filing fees and
reasonable fees and disbursements of counsel in connection therewith; (vi) the
costs and expenses in connection with any determination of the eligibility of
the Certificates for investment by institutional investors in any jurisdiction
and the preparation of any legal investment survey, including reasonable fees
and disbursements of counsel in connection therewith; (vii) the costs and
expenses in connection with printing (or otherwise reproducing) and delivering
the Registration Statement, the Prospectus, the Memoranda and any Free Writing
Prospectus, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement, the
Prospectus, the Memoranda, any Free Writing Prospectus and this Agreement as the
Underwriters may reasonably request; (viii) the fees of the rating agency or
agencies requested to rate the Certificates and (ix) the reasonable fees and
expenses of Xxxxxxx Xxxxxxxx & Wood, LLP, counsel to the Underwriters and
Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York without regard to conflicts of law
principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third-Party Beneficiaries. The parties do not intend the
benefits of this Agreement to inure to any third party except as expressly set
forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the Purchaser
has, concurrently with the execution hereof, executed and delivered the Pooling
and Servicing Agreement and that, in connection therewith, it has assigned its
rights hereunder to the Trustee for the benefit of the Certificateholders to the
extent set forth in the Pooling and Servicing Agreement. The Seller hereby
acknowledges its obligations, including that of expense reimbursement, pursuant
to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This
Agreement shall bind and inure to the benefit of, and be enforceable by, the
Seller, the Purchaser and their permitted successors and permitted assigns. The
warranties and representations and the agreements made by the Seller herein
shall survive delivery of the Mortgage Loans to the Trustee until the
termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given upon receipt by
the intended recipient if personally delivered at or couriered, sent by
facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, Vice President, telecopy number (000) 000-0000, (ii) in the case
of the Seller, CIBC Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Real Estate Finance Group, telecopy number: (000) 000-0000 and
(iii) in the case of any of the preceding parties, such other address as may
hereafter be furnished to the other party in writing by such parties.
SECTION 15. Amendment. This Agreement may be amended only by a written
instrument which specifically refers to this Agreement and is executed by the
Purchaser and the Seller; provided, however, that unless such amendment is to
cure an ambiguity, mistake or inconsistency in this Agreement, no amendment
shall be permitted unless each Rating Agency has delivered a written
confirmation that such amendment will not result in a downgrade, withdrawal or
qualification of the then current ratings of the Certificates and the cost of
obtaining any Rating Agency confirmation shall be borne by the party requesting
such amendment. This Agreement shall not be deemed to be amended orally or by
virtue of any continuing custom or practice. No amendment to the Pooling and
Servicing Agreement which relates to defined terms contained therein or any
obligations of the Seller whatsoever shall be effective against the Seller
unless the Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto in separate counterparts, each of which
when executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of any
party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. No notice to or demand on any party in
any case shall entitle such party to any other or further notice or demand in
similar or other circumstances, or constitute a waiver of the right of either
party to any other or further action in any circumstances without notice or
demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture between the parties hereto.
Nothing herein contained shall be deemed or construed as creating an agency
relationship between the Purchaser and the Seller and neither party shall take
any action which could reasonably lead a third party to assume that it has the
authority to bind the other party or make commitments on such party's behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior agreements
and understandings relating to the subject matter hereof. 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.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
CIBC INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
EXHIBIT A
MORTGAGE LOAN SCHEDULE
JPMCC 2006-CIBC16
Mortgage Loan Schedule
Loan # Mortgagor Name Property Address City State
------ ---------------------------------------------- ------------------------------------- ---------------- -------
3 Xxx Outlets LLC, Xxxxxxx Outlets LLC, Various Various Various
Xxxxxxx Outlets LLC
3.01 00 Xxxxx Xxxxxx Xxx XX
3.02 0 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX
3.03 000 Xxxxxxx Xxxx Xxxxxxx XX
5 Portfolio Real Estate Englewood, LLC, Various Various Various
Portfolio Real Estate Sedgewick, LLC,
Portfolio Sparks, LLC, Portfolio Real
Estate South Attleboro, LLC, Portfolio Real
Estate West Springfield, LLC, Portfolio
Real Estate New Kensington, LLC, Portfolio
Real Estate Palm Bay, LLC, Portfolio Real
Estate Auburn Hills, LLC, Portfolio Real
Estate Marysville, LLC, Portfolio Real
Estate Columbus, LLC
5.01 2725, 2755 & 0000 Xxxxx Xxxxxx Xxxx Xxx XX
Northeast
5.02 000 Xxx Xxxxxxxxx Xxxxxx Xxxxx XX
5.03 00 Xxxxxxxxxx Xxxxx Xxxx Xxxxxxxxxxx XX
5.04 000 Xxxx Xxxxxx Xxxxx Xxx Xxxxxxxxxx XX
5.05 00 Xxxxx Xxxxxx Xxxxxxxxx XX
5.06 0000 Xxxxxxx Xxxxx Xxxxxxxx XX
5.07 00000 Xxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX
5.08 0000 Xxxxx Xxxxxx Xxxxxxx XX
5.09 00000 Xxxxxx Xxxxx Xxxxxxxxxx XX
5.1 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx XX
0 Xxxxxxxx Xxxxxxx XX XXX, Xxxxxxxx XX LLC, Various Various MI
The Lakes MI LLC, Canterbury Square MI LLC,
Greentrees MI LLC, Southpointe Square MI LLC
7.01 00000 Xxxx 00 Xxxx Xxxx Xxxxxxxxxx XX
7.02 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxx XX
7.03 0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
7.04 00000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX
7.05 00000 Xxxx Xxxxxx Xxxxxxxxx XX
7.06 00000 Xxxx Xxxx Xxxxxxxxx XX
8 Cityview Apartments Associates LP 1, LLLP Various Houston TX
8.01 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX
8.02 000 Xxxxxxx Xxxx Xxxxxxx XX
8.03 000 Xxxxxx Xxxx Xxxxxxx XX
8.04 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
8.05 00000 Xxxxxxxxx Xxxxx Xxxxxxx XX
8.06 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX
8.07 0000 Xxxxxx Xxxx Xxxxxxx XX
8.08 000 Xxxxxx Xxxx Xxxxxxx XX
16 Avalon Oaks, LLC and River Oaks, LLC Various Columbus OH
16.01 0000 Xxxxx Xxxx Xxxxx Xxxxxxxx XX
16.02 0000 Xxxx Xxxx Xxxxxxxx XX
18 Oregon-DPP LLC Various Various OR
18.01 00000 Xxxxxxxxx XxXxxx Xxxx Xxxxxx XX
18.02 0000 Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX
00 Xxxxxxx Xxxxxxxxx Xxxxxxx, XX, Xxxxxxx 0000 Xxxxxxxxx Xxxx Xxxxxx XX
Xxxxxxxxx Xxxxxxx 0, XX, Xxxxxxx Frankford
Springs 2, LP, Sequoia Frankford Springs 3,
LP, Sequoia Frankford Springs 4, LP,
Sequoia Frankford Springs 5, LP, Sequoia
Frankford Springs 6, LP, Sequoia Frankford
Springs 7, LP, Sequoia Frankford Springs 8,
LP, Sequoia Frankford Springs 9, LP,
Sequoia Frankford Springs 10, LP, Sequoia
Frankford Springs 11, LP, Sequoia Frankford
Springs 12, LP, Sequoia Frankford Springs
13, LP, Sequoia Frankford Springs 14, LP,
Sequoia Frankford Springs 15, LP, Sequoia
Frankford Springs 16, LP, Sequoia Frankford
Springs 17, LP, Sequoia Frankford Springs
18, LP, Sequoia Xxxxxxxxx Xxxxxxx 00, XX
00 0000 Xxxxx Xxxxxxxx, LLC 0000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX
22 FCSL Properties, LLC 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
00 Xxxx Xxxx Xxxx Acquisition, LLC 0000 00xx Xxxxxx Xxxxxxxx XX
25 000 Xxxx Xxxxx Xxxxx LLC 000 Xxxx Xxxxx Xxxxx Xxxxxxx XX
27 NRFC Sub Investor II, LLC 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx XX
30 San Xxxxx Properties 0000 Xxxxx Xxx Xxxxx Xxxxxx Xxx Xxxxxxx XX
33 Suemandy Propreties, LLC and CMR 000-000 Xxxxxx Xxx Xxxxx Xxxxxx XX
Exchangepoint, LLC
34 1097 North State, LLC 0000 Xxxxx Xxxxx Xxxxxx Xxxxx XX
00 Xxxxxx Xxxxxx Holdings, LLC 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX
36 Prime Diamond Investment, Ltd. 00000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
00 Xxxxxxx Xxxxx II L.L.C. 00000 XX Xxxxxxx Xxxx Xxxxxxx XX
00 Xxxxxx Xxxxx I, LLC 708-764, 796, 000-000 Xxxx Xxxx Xxx Xxxxxx XX
43 5000 Sunset LLC 0000 Xxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxx XX
45 AZG Northern LLC Xxxxxxxxx Xxxxxxxx xx 00xx Xxxxxx and Phoenix AZ
00 X&X Enterprises, LLC 00000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
49 5080 California, LLC 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX
00 Xxxx Xxxx Xxxxx LLC and Executive Mews 0000-0000 Xxxxxxx Xxxx Xxxx Xxxxxx Xxxx XX
Phase 2 and 4 Associates LLC
00 Xxxxx Xxxxxx, Ltd. 0000 Xxxxxxxx Xxxx Xxxxxx XX
56 00 Xxxx 0 Xxxxxx Realty, LLC 00 Xxxx 0xx Xxxxxx Xxx Xxxx XX
57 5001 Joerns Drive, LLC and Overland Joerns, 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx XX
LLC
60 Riverbank Realty, LP 00000 Xxxxxxx Xxxx Xxxxxxx XX
61 Trail Plaza, LLC 0000-0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxx XX
63 000 Xxxx 00xx Xxxxxx Realty Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX
65 SFB Shops at Civic Center, L.L.C. 211, 235, 000 Xxxx Xxxxxx Xxxx Xxxxxxx XX
72 Dallas Bayou Bend, Ltd. 0000 Xxxxxxxx Xxxx Xxxxxx XX
73 DYK Partners, Inc. 0000-0000 Xxxxxxxx Xxxxxx Xxxxxx XX
74 Xxxxxxx Xxxxxxxxx Design Plaza L.P. 0000 Xxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX
00 Xxxxxxxxxx Xxxxxxxx Xxxx, X.X. 0000 Xxxxx 0000 Xxxx Xxxx XX
00 Xxxx Xxxxxxx Xxxxxxx Xxxx. 000 Xxxx 0xx Xxxxxx Xxx Xxxx XX
78 Xxxxxxx Legacy, LLC 0000-0000 Xxx Xxxxx Xxxxxx Xxxxxxx XX
81 Forest Lake Facilities, LLC and Forest 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxx XX
Xxxx, XX Limited Partnership
00 Xxxxxxxxx Xxxxx Holding, LLC 00000 Xxxx Xxxxx Xxxxxxxxx Xxxxxx XX
86 Valley Investors, LLC 0000 Xxxxxxxxxx Xxxx Xxxxxxx XX
00 Xxxxxx Xxxx Xxxxxxxxx, LLC 000-000 Xxxx 00xx Xxxxxx Xxxxxx Xxxx XX
88 JNUPS1 LLC, JNUPS2 LLC, JNUPS3 LLC and 000 XX Xxxxxxx 000 Xxxxx Xxxxx XX
JNUPS4 LLC
95 List Apopka, LLC 0000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
101 0 Xxxxx Xxxxxx Xxxxxx Limited Liability 0-00 Xxxxx Xxxxxx Xxxxxx, 0 Xxxxx Xxxxxxx Xxxxxx XX
Partnership Albans Circle, 3610/3612 Chapel Road
102 Immokalee Apartments, LLC 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX
108 Uptown University, LLC 000-000 Xxxxxxxxxx Xxxxxx Xxx Xxxxx XX
109 Shoppes of Xxxx Club, LLC 000 Xxxx Xxxx Xxxxxxxxx Xxxxxx XX
116 RO Forest Park, L.L.C. 00000 Xxxx Xxxxxxx Xxxxxxx XX
117 Xxxxx X. Xxxxxxx LLC and Xxx Xxxxxxxx 925 - 000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX
Etchell LLC
Interest Net Mortgage
Loan # Zip Code County Property Name Size Measure Rate (%) Interest Rate
------ -------- ------------- ------------------------------------------ ------- ----------- -------- -------------
3 Various Various Prime Retail Outlets Portfolio 781184 Square Feet 5.79000 5.76900
3.01 00000 Xxxxxxxxx Xxxxx Xxxxxxx - Xxx 000000 Square Feet 5.79000
3.02 29341 Cherokee Prime Outlets - Gaffney 302310 Square Feet 5.79000
3.03 30701 Xxxxxx Prime Outlets - Xxxxxxx 254267 Square Feet 5.79000
5 Various Various REPM Portfolio 1623068 Square Feet 6.05700 6.03600
5.01 32905 Brevard 2725, 2755 & 0000 Xxxxx Xxxxxx XX 000000 Square Feet 6.05700
5.02 48326 Oakland 000 Xxx Xxxxxxxxx 000000 Xxxxxx Feet 6.05700
5.03 01089 Hampden 00 Xxxxxxxxxx Xxxxx 000000 Xxxxxx Feet 6.05700
5.04 15068 Xxxxxxxxxxxx 000 Xxxx Xxxxxx Xxxxx 000000 Xxxxxx Feet 6.05700
5.05 02703 Bristol 00 Xxxxx Xxxxxx 456000 Square Feet 6.05700
5.06 43228 Franklin 0000 Xxxxxxx Xxxxx 000000 Xxxxxx Feet 6.05700
5.07 80112 Arapahoe 00000 Xxxx Xxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx Feet 6.05700
5.08 67215 Sedgwick 0000 Xxxxx Xxxxxx 00000 Xxxxxx Feet 6.05700
5.09 43040 Union 00000 Xxxxxx Xxxxx 000000 Xxxxxx Feet 6.05700
5.1 89431 Washoe 0000 Xxxx Xxxxxxxx Xxxxxx 00000 Square Feet 6.05700
7 Various Various Lightstone Michigan Multifamily Portfolio 1947 Units 6.10000 6.07900
7.01 48034 Oakland The Lakes 434 Units 6.10000
7.02 48083 Oakland Canterbury Square 336 Units 6.10000
7.03 00000 Xxxxxxx Xxxxxxxx Xxxxxxx 000 Units 6.10000
7.04 48312 Macomb Xxxxxxxx 328 Units 6.10000
7.05 48193 Xxxxx Greentrees 288 Units 6.10000
7.06 00000 Xxxxx Xxxxxxxxxxx Xxxxxx 224 Units 6.10000
8 77060 Xxxxxx City View Xxxxxxxxx 0 0000 Xxxxx 6.18000 6.15900
8.01 77060 Xxxxxx Biscayne 560 Units 6.18000
8.02 77060 Xxxxxx Xxxxxxxxxxxx 509 Units 6.18000
8.03 00000 Xxxxxx XxxxXxxx Xxxx 286 Units 6.18000
8.04 00000 Xxxxxx Xxxxxxxx 282 Units 6.18000
8.05 77060 Xxxxxx Xxxxxxx 268 Units 6.18000
8.06 77060 Xxxxxx Amherst 310 Units 6.18000
8.07 77060 Harris Salado 318 Units 6.18000
8.08 77060 Xxxxxx Xxxxxx 179 Units 6.18000
16 43228 Franklin Avalon and River Oaks Apartments Portfolio 523 Units 6.22000 6.19900
16.01 43228 Franklin River Oaks Apartments 288 Units 6.22000
16.02 43228 Franklin Avalon Apartments 235 Units 6.22000
18 Various Various 24 Hour Fitness Portfolio 103339 Square Feet 6.15000 6.12900
18.01 97035 Washington 00000 Xxxxxxxxx XxXxxx 00000 Xxxxxx Feet 6.15000
18.02 97209 Multnomah 0000 Xxxxxxxxx Xxxxxxx Xxxxxx 00000 Xxxxxx Feet 6.15000
19 75287 Xxxxxx Xxxxxxx at Frankford Springs 332 Units 6.30000 6.27900
20 90007 Los Angeles Texere Plaza 45540 Square Feet 6.22000 6.19900
22 32256 Xxxxx Florida Coastal School of Law 220000 Square Feet 6.33000 6.30900
23 00000 Xxxxxxxxxxx Xxxx Xxxx Xxxx 000000 Xxxxxx Feet 6.63000 6.60900
25 93906 Monterey 000 Xxxx Xxxxx Xxxxx 000000 Xxxxxx Feet 6.20000 6.17900
27 84119 Xxxx Xxxx XXXX - Xxxx Xxxx Xxxx 000000 Square Feet 5.16000 5.13900
30 90015 Los Angeles American Garment Center 40952 Square Feet 6.21000 6.18900
33 63376 Saint Xxxxxxx Crossing at Mid Rivers 93985 Square Feet 6.02000 5.99900
34 00000 Xxxxxxxxx Xxxxxx Xxxxx MHP 408 Pads 6.11000 6.08900
35 00000 Xxxxxxxx Xxxxxx Xxxxxx 109547 Square Feet 6.52000 6.49900
36 75252 Collin XXX-Xxxxxxxxx Xxxxx 000000 Square Feet 5.87000 5.84900
39 00000 Xxxx Xxxxxxx Xxxxx 00000 Xxxxxx Feet 6.10000 6.07900
41 95370 Tuolumne Xxxxxx Xxxxx 000000 Square Feet 5.87000 5.84900
43 90027 Los Angeles 0000 Xxxx Xxxxxx Xxxxxxxxx 00000 Xxxxxx Feet 6.16000 6.13900
45 85021 Maricopa 00xx Xxxxxx xxx Xxxxxxxx Xxxxxx 00000 Square Feet 6.02000 5.99900
48 94538 Alameda Crossroads Shopping Center 36576 Square Feet 6.13000 6.10900
49 93309 Xxxx 0000 Xxxxxxxxxx Xxxxxx 00000 Xxxxxx Feet 6.22000 6.19900
53 00000 Xxxxxx Xxxxxx Xxxx Executive Office Mews 109762 Square Feet 6.25000 6.22900
55 75220 Dallas Pecan Square Apartments 440 Units 6.14000 6.11900
56 10003 Xxx Xxxx 00 Xxxx 0xx Xxxxxx 99 Beds 6.23000 6.20900
57 54481 Portage Sunrise Medical 314528 Square Feet 6.26000 6.23900
60 00000 Xxxxxx Xxxxxxxxx Apartments 320 Units 5.73000 5.70900
61 00000 Xxxxxxx Xxxxx Xxxxx 00000 Xxxxxx Feet 5.47000 5.44900
63 10018 New York 000 Xxxx 00xx Xxxxxx 49290 Square Feet 6.39000 6.36900
65 85296 Maricopa The Shops at Civic Center 25681 Square Feet 6.46000 6.39900
72 75220 Dallas Xxxxx Xxxx Xxxxxxxxxx 000 Xxxxx 6.04000 6.01900
73 00000 Xxx Xxxxx Xxxxxxx Xxxxx 00000 Square Feet 6.28000 6.25900
74 90048 Los Angeles Xxxxxxx Xxxxxxxxx Design Plaza 23747 Square Feet 6.05000 6.02900
75 84058 Utah Xxxxxxxxxx Xxxxxxxx Xxxx 000000 Square Feet 6.58000 6.55900
77 10009 Xxx Xxxx 000 Xxxx 0xx Xxxxxx 28 Units 5.85000 5.82900
78 32814 Orange Xxxxxxx Xxxx Xxxxxxx Xxxxxx X-0 00000 Square Feet 6.09000 6.06900
81 00000 Xxxxxxxxxx Xxxx Xxxxx - Xxxxxx Xxxx 00000 Square Feet 6.05000 6.02900
82 44123 Cuyahoga Xxxxxxxxx Xxxxx 00000 Square Feet 6.41000 6.38900
86 38125 Shelby Sportsman's Warehouse 49548 Square Feet 6.27000 6.24900
87 00000 Xxx Xxxxxx Xxxx Xxxxxxxx 00000 Square Feet 6.22000 6.19900
88 33619 Hillsborough UPS Service Center 98400 Square Feet 6.32000 6.29900
95 32703 Orange 0000 Xxxx Xxxxxx Xxxxxx 000000 Xxxxxx Feet 6.43000 6.40900
101 00000 Xxxxxxxx Xx. Xxxxxx Xxxxxx 00000 Square Feet 6.34000 6.31900
102 34142 Xxxxxxx Immokalee Apartments 100 Units 5.97000 5.94900
108 92103 San Diego University Retail and Apartments 8655 Square Feet 6.27000 6.15900
109 32703 Seminole Shoppes of Xxxx Club 8439 Square Feet 6.18000 6.15900
116 00000 Xxxxxx Xxxxxx Xxxx Apartments 120 Units 6.41000 6.38900
117 66030 Xxxxxxx New Century Retail Plaza 12064 Square Feet 6.09000 6.06900
Monthly
Original Cutoff Rem. Maturity/A Amort. Rem. Debt Servicing
Loan # Balance Balance Term Term RD Date Term Amort. Service Fee Rate Accrual Type ARD (Y/N)
------ ----------- ----------- ---- ---- ---------- ------ ------ ------- --------- ------------ ---------
3 114,720,000 114,720,000 120 120 09/01/16 360 360 672,393 Actual/360 No
3.01 53,920,000 53,920,000 120 120 09/01/16 360 360 No
3.02 39,200,000 39,200,000 120 120 09/01/16 360 360 No
3.03 21,600,000 21,600,000 120 120 09/01/16 360 360 No
5 86,680,000 86,680,000 120 117 06/01/16 360 360 515,832 Actual/360 No
5.01 15,600,000 15,600,000 120 117 06/01/16 360 360 No
5.02 13,416,000 13,416,000 120 117 06/01/16 360 360 No
5.03 11,360,000 11,360,000 120 117 06/01/16 360 360 No
5.04 9,920,000 9,920,000 120 117 06/01/16 360 360 No
5.05 8,752,000 8,752,000 120 117 06/01/16 360 360 No
5.06 7,120,000 7,120,000 120 117 06/01/16 360 360 No
5.07 6,800,000 6,800,000 120 117 06/01/16 360 360 No
5.08 6,720,000 6,720,000 120 117 06/01/16 360 360 No
5.09 5,200,000 5,200,000 120 117 06/01/16 360 360 No
5.1 1,792,000 1,792,000 120 117 06/01/16 360 360 No
7 80,000,000 80,000,000 120 118 07/01/16 360 360 484,796 Actual/360 No
7.01 21,000,000 21,000,000 120 118 07/01/16 360 360 No
7.02 16,035,000 16,035,000 120 118 07/01/16 360 360 No
7.03 13,750,000 13,750,000 120 118 07/01/16 360 360 No
7.04 12,985,000 12,985,000 120 118 07/01/16 360 360 No
7.05 8,780,000 8,780,000 120 118 07/01/16 360 360 No
7.06 7,450,000 7,450,000 120 118 07/01/16 360 360 No
8 72,800,000 72,763,482 120 119 08/01/16 420 419 423,935 Actual/360 No
8.01 14,895,930 14,888,458 120 119 08/01/16 420 419 No
8.02 10,050,170 10,045,129 120 119 08/01/16 420 419 No
8.03 9,747,310 9,742,421 120 119 08/01/16 420 419 No
8.04 8,623,540 8,619,214 120 119 08/01/16 420 419 No
8.05 8,113,460 8,109,390 120 119 08/01/16 420 419 No
8.06 7,555,560 7,551,770 120 119 08/01/16 420 419 No
8.07 7,446,000 7,442,265 120 119 08/01/16 420 419 No
8.08 6,368,030 6,364,836 120 119 08/01/16 420 419 No
16 28,390,000 28,390,000 120 117 06/01/16 360 360 174,249 Actual/360 No
16.01 16,165,000 16,165,000 120 117 06/01/16 360 360 No
16.02 12,225,000 12,225,000 120 117 06/01/16 360 360 No
18 22,750,000 22,750,000 120 119 08/01/16 360 360 138,599 Actual/360 No
18.01 14,000,000 14,000,000 120 119 08/01/16 360 360 No
18.02 8,750,000 8,750,000 120 119 08/01/16 360 360 No
19 21,400,000 21,400,000 120 118 07/01/16 360 360 132,460 Actual/360 No
20 20,000,000 20,000,000 120 119 08/01/16 360 360 122,753 Actual/360 No
22 17,625,000 17,625,000 120 120 09/01/16 300 300 117,140 Actual/360 No
23 17,500,000 17,460,535 120 118 07/01/16 300 298 119,587 Actual/360 No
25 17,000,000 16,979,142 120 119 08/01/16 300 299 111,619 Actual/360 No
27 17,000,000 16,669,803 84 72 09/01/12 300 288 100,971 Actual/360 No
30 15,400,000 15,387,931 120 119 08/01/16 360 359 94,420 Actual/360 No
33 14,000,000 14,000,000 120 118 07/01/16 360 360 84,117 Actual/360 No
34 14,000,000 13,977,400 120 118 07/01/16 360 358 84,930 Actual/360 No
35 13,450,000 13,450,000 120 120 09/01/16 360 360 85,190 Actual/360 No
36 13,500,000 13,328,634 120 114 03/01/16 240 234 95,708 Actual/360 No
39 12,250,000 12,234,669 120 119 08/01/16 300 299 79,677 Actual/360 No
41 10,850,000 10,850,000 120 115 04/01/16 360 360 64,147 Actual/360 No
43 10,750,000 10,750,000 120 118 07/01/16 360 360 65,562 Actual/360 No
45 10,500,000 10,500,000 120 118 07/01/16 360 360 63,088 Actual/360 No
48 9,800,000 9,800,000 120 120 09/01/16 360 360 59,578 Actual/360 No
49 9,800,000 9,775,187 120 117 06/01/16 360 357 60,149 Actual/360 No
53 9,200,000 9,200,000 120 119 08/01/16 360 360 56,646 Actual/360 No
55 9,050,000 9,050,000 60 55 04/01/11 360 360 55,077 Actual/360 No
56 9,000,000 8,992,985 120 119 08/01/16 360 359 55,298 Actual/360 No
57 8,960,000 8,960,000 120 119 08/01/16 360 360 55,227 Actual/360 No
60 8,600,000 8,558,624 120 115 04/01/16 360 355 50,078 Actual/360 No
61 8,500,000 8,483,832 90 76 01/01/13 360 358 48,102 Actual/360 No
63 8,300,000 8,293,808 120 119 08/01/16 360 359 51,863 Actual/360 No
65 7,750,000 7,750,000 120 120 09/01/16 360 360 48,782 Actual/360 No
72 6,750,000 6,750,000 60 54 03/01/11 360 360 40,643 Actual/360 No
73 6,500,000 6,500,000 120 118 07/01/16 360 360 40,149 Actual/360 No
74 6,500,000 6,489,339 120 118 07/01/16 360 358 39,180 Actual/360 No
75 6,415,000 6,415,000 120 118 07/01/16 360 360 40,885 Actual/360 No
77 6,000,000 6,000,000 120 120 09/01/16 360 360 35,396 Actual/360 No
78 6,000,000 6,000,000 120 120 09/01/16 360 360 36,321 Actual/360 No
81 5,750,000 5,740,569 120 118 07/01/16 360 358 34,659 Actual/360 No
82 5,550,000 5,550,000 120 118 07/01/16 360 360 34,752 Actual/360 No
86 5,300,000 5,291,805 120 118 07/01/16 360 358 32,702 Actual/360 No
87 5,080,000 5,080,000 120 119 08/01/16 360 360 31,179 Actual/360 No
88 5,000,000 5,000,000 120 118 07/01/16 0 0 26,699 Actual/360 No
95 4,200,000 4,200,000 120 120 09/01/16 300 300 28,175 Actual/360 No
101 3,631,000 3,631,000 120 116 05/01/16 360 360 22,570 Actual/360 No
102 3,400,000 3,367,462 120 110 11/01/15 360 350 20,319 Actual/360 No
108 3,000,000 2,997,687 120 119 08/01/16 360 359 18,511 Actual/360 No
109 2,850,000 2,847,748 120 119 08/01/16 360 359 17,418 Actual/360 No
116 2,500,000 2,493,955 120 117 06/01/16 360 357 15,654 Actual/360 No
117 2,023,000 2,014,033 120 115 04/01/16 360 355 12,246 Actual/360 No
ARD Step Crossed Originator/ Letter of
Loan # Up (%) Title Type Loan Loan Seller Guarantor Credit
------ -------- ----------------- ------- ----------- -------------------------------------- -----------------------
3 Fee and Leasehold CIBC Prime Outlets Acquisition Company LLC No
3.01 Fee CIBC No
3.02 Leasehold CIBC No
3.03 Fee CIBC No
5 Fee CIBC Xxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx No
5.01 Fee CIBC No
5.02 Fee CIBC No
5.03 Fee CIBC No
5.04 Fee CIBC No
5.05 Fee CIBC No
5.06 Fee CIBC No
5.07 Fee CIBC No
5.08 Fee CIBC No
5.09 Fee CIBC No
5.1 Fee CIBC No
7 Fee CIBC Lightstone Holdings LLC No
7.01 Fee CIBC No
7.02 Fee CIBC No
7.03 Fee CIBC No
7.04 Fee CIBC No
7.05 Fee CIBC No
7.06 Fee CIBC No
8 Fee CIBC Xxxxx Xxxxx No
8.01 Fee CIBC No
8.02 Fee CIBC No
8.03 Fee CIBC No
8.04 Fee CIBC No
8.05 Fee CIBC No
8.06 Fee CIBC No
8.07 Fee CIBC No
8.08 Fee CIBC No
16 Fee CIBC Xxxxxx Xxxx, Xxxxxx Xxxxxx No
16.01 Fee CIBC No
16.02 Fee CIBC No
18 Fee CIBC Xxxx-Xxxxx Properties, Inc. No
18.01 Fee CIBC No
18.02 Fee CIBC No
19 Fee CIBC Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx, No
Xxxxx Revocable Living Trust u/a
12/18/04, Bononzo Family Trust u/a
8/26/99, Xxxxx X. and Xxxxxx X.
Xxxxxxx, Brain D. and Xxxx Xxx
Xxxxxxx, August T. and Xxxxx X.
Xxxxxxxxx, Xxxx X. and Xxxxx X.
XxXxxx, The Xxxxxx Xxxxxxxx Family
Living Trust, The Xxxxxxx X. Xxxxxxxxx
Family Trust u/a dtd 2/17/92, The
Xxxxx Xxxxxxx Trust u/a dtd 5/03/01,
A&E Hacienda, LLC, Xxxx X. Xxx, Xxxxxx
X. Xxxxxxx, The Xxxxxx X. Xxxxx Trust
u/a dtd 5/13/96, Xxxx Xxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxx X. Xxxxxxxx Revocable
Trust Xxxxxxx X. Xxxxxxxxx, Xx.
20 Fee CIBC Xxxxxxxx Xxxxx No
22 Fee CIBC Florida Coastal School of Law, Inc. No
23 Fee CIBC Xxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx, No
Fair Oaks Mall Acquisition, LLC
25 Fee CIBC X.X. Xxxxxxx, Inc. No
27 Fee CIBC NRFC NNN Holdings, LLC No
30 Fee CIBC Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, No
Xxxxxx Rahbarbour
33 Fee CIBC Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx No
34 Fee CIBC Xxxxx Xxxxx No
35 Fee CIBC Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx No
36 Fee CIBC Xxxxx X. Xxxx No
39 Fee CIBC Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, No
Xxxxx X. Xxxxxxxx
41 Fee CIBC Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxx No
43 Fee CIBC Xxxxxxxx Xxxxx No
45 Fee CIBC Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx No
Xxxxxxx
48 Fee CIBC Xxxxxx Xxxx, Xxxxxxx Xxxxxx No
49 Fee CIBC Xxxxx X. Xxxxxx No
53 Fee CIBC RAIT Investment Trust No
55 Fee CIBC Xxxxx X. Xxxxxxxx No
56 Fee CIBC Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxx No
Fouladian
57 Fee CIBC Xxxxxxx Xxxx, Xxxxxx Xxxx No
60 Fee CIBC Xxxxx Xxxxx No
61 Fee CIBC Xxxxx X. Case No
63 Fee CIBC Xxxxxxxxx Xxxxx Xxxxx No
65 Fee CIBC Xxxxxx Xxxxx No
72 Fee CIBC Xxxxx X. Xxxxxxxx No
73 Fee CIBC Xxxxxx X. Xxxxx No
74 Fee and Leasehold CIBC Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, No
Xxxxxx Xxxxxxxx
75 Fee CIBC Xxxx X. Xxxxxxx No
77 Fee CIBC Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx No
78 Fee CIBC Xxx X. Xxxxx, Xxxxxxx Xxxxxxxx No
81 Fee CIBC Xxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxx X. No
Xxxxxxx, Xxxxxxx Yassky
82 Fee CIBC Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx No
86 Fee CIBC Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx No
87 Fee CIBC Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx No
88 Fee CIBC Xxxxx Xxxxx No
95 Fee CIBC Xxxxxxx X. List, Jr. No
101 Fee CIBC Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx No
102 Fee CIBC Xxxxxx X. Xxxxxxxxxxxx, Xxxxxxx X. No
Xxxxxxxxx, Xxxxx Xxxxxxxx
108 Fee CIBC Xxxxxxxx Xxxxxx No
109 Fee CIBC Xxx X. Xxxxx, Xxxxxxx Xxxxxxxx No
116 Fee CIBC Xxxxx Xxxxxx No
117 Fee CIBC Xxxxx X. Xxxxxxx, Xxx Xxxxxxxx Xxxxxxx No
UPFRONT ESCROW
----------------------------------------------------------------------------------------------------------
Upfront Upfront Eng. Upfront Upfront TI/LC Upfront RE Upfront Ins. Upfront Other
Loan # CapEx Reserve Reserve Envir. Reserve Reserve Tax Reserve Reserve Reserve
------ ------------- ------------ -------------- ------------- ----------- ------------ -------------
3 0.00 0.00 0.00 1,972,481.00 1,042,469.42 76,529.97 0.00
3.01
3.02
3.03
5 0.00 2,500.00 0.00 500,000.00 56,171.91 56,651.59 0.00
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.1
7 0.00 1,872,599.00 0.00 0.00 200,280.92 92,779.86 1,650,000.00
7.01
7.02
7.03
7.04
7.05
7.06
8 45,200.00 0.00 0.00 0.00 921,987.30 604,323.89 1,650,000.00
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
16 0.00 0.00 0.00 0.00 0.00 19,159.50 0.00
16.01
16.02
18 861.16 0.00 0.00 2,083.33 111,879.72 10,188.83 152,297.95
18.01
18.02
19 4,842.00 0.00 0.00 0.00 443,333.33 20,130.68 535,000.00
20 30,000.00 0.00 0.00 60,000.00 68,654.50 17,932.25 1,000,000.00
22 4,400.00 0.00 0.00 0.00 124,848.00 29,616.00
23 10,834.00 38,750.00 0.00 416,667.00 136,666.67 54,780.00 445,000.00
25 0.00 0.00 0.00 0.00 37,670.26 4,480.00 0.00
27 1,959.00 26,500.00 0.00 0.00 189,686.00 12,586.67 0.00
30 512.00 0.00 0.00 5,625.00 110,196.00 8,462.25 0.00
33 1,175.00 0.00 0.00 508,712.00 124,830.75 4,978.75 0.00
34 2,179.17 0.00 0.00 0.00 73,385.00 54,983.08 129,600.00
35 2,465.00 0.00 0.00 4,167.00 18,306.56 5,129.83 8,083.33
36 2,614.00 0.00 0.00 8,333.00 81,080.15 14,602.33 0.00
39 0.00 0.00 0.00 0.00 32,669.00 0.00 17,430.00
41 2,081.00 0.00 0.00 6,250.00 17,537.33 28,899.84 0.00
43 860.00 0.00 0.00 100,000.00 42,597.10 11,098.08 0.00
45 35,000.00 0.00 0.00 100,000.00 99,897.00 10,747.92 161,188.00
48 457.00 32,325.00 0.00 37,917.00 60,859.75 5,374.00 0.00
49 1,630.00 0.00 0.00 8,151.00 27,021.54 19,530.75 0.00
53 250,000.00 29,125.00 0.00 0.00 24,120.00 28,861.50 0.00
55 314,121.21 0.00 0.00 0.00 109,445.00 83,333.33 0.00
56 0.00 0.00 0.00 0.00 70,552.59 4,339.01 0.00
57 0.00 0.00 0.00 2,083.33 0.00 0.00 0.00
60 6,667.00 0.00 0.00 0.00 62,347.50 86,666.67 0.00
61 1,023.00 0.00 0.00 150,000.00 161,416.73 18,726.42 441,208.34
63 13,732.00 44,858.00 0.00 4,167.00 57,614.00 74,369.75 0.00
65 321.00 0.00 0.00 1,070.00 29,069.33 1,591.75 182,318.50
72 162,663.46 0.00 0.00 0.00 61,687.11 84,541.25 0.00
73 100,000.00 2,625.00 0.00 0.00 44,726.50 4,453.00 0.00
74 395.75 0.00 0.00 0.00 17,884.42 6,514.50 0.00
75 1,850.00 125,000.00 0.00 2,000.00 31,559.32 3,056.67 590,000.00
77 0.00 0.00 0.00 0.00 105,853.67 13,076.07 0.00
78 386.09 0.00 0.00 50,000.00 88,176.00 2,315.25 67,275.00
81 1,186.00 0.00 0.00 0.00 0.00 0.00 0.00
82 401,005.00 0.00 0.00 4,000.00 46,011.47 3,010.00 0.00
86 0.00 0.00 0.00 0.00 0.00 0.00 0.00
87 283.00 0.00 0.00 0.00 45,634.42 8,106.63 90,000.00
88 0.00 0.00 0.00 0.00 0.00 0.00 0.00
95 912.59 37,688.00 0.00 0.00 0.00 0.00 0.00
101 248.75 0.00 0.00 2,746.42 14,826.10 1,939.00 0.00
102 2,083.33 0.00 0.00 0.00 5,253.48 12,468.25 0.00
108 337.17 0.00 0.00 720.41 22,633.82 3,759.50 0.00
109 105.50 0.00 0.00 15,000.00 25,666.67 1,938.42 0.00
116 2,500.00 67,813.00 0.00 0.00 46,763.08 31,465.88 0.00
117 151.00 0.00 0.00 704.00 3,000.00 1,117.50 63,790.00
MONTHLY ESCROW
-------------------------------------------------------------------
Monthly Monthly Monthly Monthly Monthly
Capex Envir. Monthly RE Tax Ins. Other Grace Lockbox Defeasance
Loan # Reserve Reserve TI/LC Reserve Reserve Reserve Reserve Period In-place Property Type Permitted
------ -------- ------- ------------- --------- -------- ------- ------ -------- -------------------- ----------
3 9764.83 0.00 0.00 138840.90 12754.99 0.00 7 No Retail Yes
3.01 7 No Retail
3.02 7 No Retail
3.03 7 No Retail
5 8115.00 0.00 12173.00 8024.56 7383.08 0.00 7 Yes Industrial Yes
5.01 7 Yes Industrial
5.02 7 Yes Industrial
5.03 7 Yes Industrial
5.04 7 Yes Industrial
5.05 7 Yes Industrial
5.06 7 Yes Industrial
5.07 7 Yes Industrial
5.08 7 Yes Industrial
5.09 7 Yes Industrial
5.1 7 Yes Industrial
7 50854.02 0.00 0.00 200280.92 23194.97 0.00 7 No Multifamily Yes
7.01 7 No Multifamily
7.02 7 No Multifamily
7.03 7 No Multifamily
7.04 7 No Multifamily
7.05 7 No Multifamily
7.06 7 No Multifamily
8 45200.00 0.00 0.00 102443.03 67501.86 0.00 7 No Multifamily Yes
8.01 7 No Multifamily
8.02 7 No Multifamily
8.03 7 No Multifamily
8.04 7 No Multifamily
8.05 7 No Multifamily
8.06 7 No Multifamily
8.07 7 No Multifamily
8.08 7 No Multifamily
16 8717.00 0.00 0.00 61928.06 9579.75 0.00 7 No Multifamily Yes
16.01 7 No Multifamily
16.02 7 No Multifamily
18 861.16 0.00 2083.33 10170.88 2888.83 0.00 7 No Retail Yes
18.01 7 No Retail
18.02 7 No Retail
19 4842.00 0.00 0.00 55416.67 6710.23 0.00 7 No Multifamily Yes
20 0.00 0.00 0.00 8581.81 2561.75 0.00 7 No Mixed Use Yes
22 4400.00 0.00 0.00 31212.00 6593.58 0.00 7 No Office Yes
23 10834.00 0.00 16667.00 34166.67 5478.00 0.00 7 No Retail Yes
25 0.00 0.00 0.00 6278.38 896.00 0.00 7 No Office Yes
27 1959.00 0.00 0.00 15807.17 2117.67 0.00 7 No Office Yes
30 512.00 0.00 5625.00 13774.50 940.25 0.00 7 No Retail Yes
33 1175.00 0.00 0.00 13870.08 1659.58 0.00 7 No Retail Yes
34 2179.17 0.00 0.00 14677.00 5494.42 0.00 7 No Manufactured Housing Yes
35 2465.00 0.00 4167.00 4576.64 1648.83 0.00 7 No Retail Yes
36 2614.00 0.00 8333.00 20270.04 3650.58 0.00 7 No Office Yes
39 0.00 0.00 0.00 5444.83 0.00 0.00 7 No Retail Yes
41 2081.00 0.00 6250.00 8768.67 2329.25 0.00 7 No Retail Yes
43 860.00 0.00 0.00 6085.30 1008.92 0.00 7 No Office Yes
45 0.00 0.00 0.00 16649.50 1535.42 0.00 7 No Retail Yes
48 457.00 0.00 2917.00 8694.25 1791.33 0.00 7 No Retail Yes
49 1630.00 0.00 8151.00 6755.39 2170.08 0.00 7 No Office Yes
53 1831.43 0.00 6666.67 24120.00 3206.83 0.00 7 No Office Yes
55 8250.00 0.00 0.00 21889.00 10416.67 0.00 7 No Multifamily No
56 0.00 0.00 0.00 23517.53 1295.09 0.00 7 No Multifamily Yes
57 0.00 0.00 2083.33 0.00 0.00 0.00 7 No Industrial Yes
60 6667.00 0.00 0.00 12469.50 6666.67 0.00 7 No Multifamily Yes
61 1023.00 0.00 0.00 16141.67 3706.91 0.00 7 No Retail Yes
63 1232.00 0.00 4167.00 19204.67 5720.75 0.00 7 No Office Yes
65 321.00 0.00 1070.00 3633.67 530.58 0.00 7 No Retail Yes
72 6673.00 0.00 0.00 15421.78 5636.08 0.00 7 No Multifamily No
73 799.83 0.00 0.00 8945.30 371.08 0.00 7 No Retail Yes
74 395.75 0.00 0.00 2554.92 723.83 0.00 7 No Office Yes
75 1850.00 0.00 2000.00 3155.93 764.17 0.00 7 No Industrial Yes
77 0.00 0.00 0.00 26463.42 1174.98 0.00 7 No Multifamily Yes
78 386.09 0.00 4167.00 7348.00 771.75 0.00 7 No Office Yes
81 1186.00 0.00 0.00 0.00 0.00 0.00 7 No Retail Yes
82 1005.00 0.00 4000.00 5751.43 1003.33 0.00 7 No Retail Yes
86 0.00 0.00 0.00 0.00 0.00 0.00 7 No Retail Yes
87 283.00 0.00 0.00 4148.58 2609.02 0.00 7 No Retail Yes
88 0.00 0.00 0.00 0.00 0.00 0.00 7 No Office Yes
95 912.59 0.00 0.00 0.00 0.00 0.00 7 No Industrial No
101 248.75 0.00 3119.44 2121.40 484.75 0.00 7 No Office Yes
102 2083.33 0.00 0.00 2626.74 4156.08 0.00 7 No Multifamily Yes
108 337.17 0.00 720.41 3772.30 1253.17 0.00 7 No Mixed Use Yes
109 105.50 0.00 2500.00 2333.33 276.92 0.00 7 No Retail Yes
116 2500.00 0.00 0.00 6680.44 2262.36 0.00 7 No Multifamily Yes
117 151.00 0.00 704.00 3000.00 223.50 0.00 7 No Retail Yes
MONTHLY ESCROW
Final Remaining
Interest Loan Maturity Amortization Term
Loan # Accrual Period Group Date for Balloon Loans
------ -------------- ----- -------- -----------------
3 Actual/360 1 360
3.01 1 360
3.02 1 360
3.03 1 360
5 Actual/360 1 360
5.01 1 360
5.02 1 360
5.03 1 360
5.04 1 360
5.05 1 360
5.06 1 360
5.07 1 360
5.08 1 360
5.09 1 360
5.1 1 360
7 Actual/360 2 360
7.01 2 360
7.02 2 360
7.03 2 360
7.04 2 360
7.05 2 360
7.06 2 360
8 Actual/360 2 420
8.01 2 420
8.02 2 420
8.03 2 420
8.04 2 420
8.05 2 420
8.06 2 420
8.07 2 420
8.08 2 420
16 Actual/360 2 360
16.01 2 360
16.02 2 360
18 Actual/360 1 360
18.01 1 360
18.02 1 360
19 Actual/360 2 360
20 Actual/360 1 360
22 Actual/360 1 300
23 Actual/360 1 300
25 Actual/360 1 300
27 Actual/360 1 300
30 Actual/360 1 360
33 Actual/360 1 360
34 Actual/360 2 360
35 Actual/360 1 360
36 Actual/360 1 240
39 Actual/360 1 300
41 Actual/360 1 360
43 Actual/360 1 360
45 Actual/360 1 360
48 Actual/360 1 360
49 Actual/360 1 360
53 Actual/360 1 360
55 Actual/360 2 360
56 Actual/360 2 360
57 Actual/360 1 360
60 Actual/360 2 360
61 Actual/360 1 360
63 Actual/360 1 360
65 Actual/360 1 360
72 Actual/360 2 360
73 Actual/360 1 360
74 Actual/360 1 360
75 Actual/360 1 360
77 Actual/360 2 360
78 Actual/360 1 360
81 Actual/360 1 360
82 Actual/360 1 360
86 Actual/360 1 360
87 Actual/360 1 360
88 Actual/360 1
95 Actual/360 1 300
101 Actual/360 1 360
102 Actual/360 2 360
108 Actual/360 1 360
109 Actual/360 1 360
116 Actual/360 2 360
117 Actual/360 1 360
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
(1) No Mortgage Loan is 30 days or more delinquent in payment of principal
and interest (without giving effect to any applicable grace period) as of the
Cut-off Date and no Mortgage Loan has been 30 days or more (without giving
effect to any applicable grace period) past due.
(2) Except with respect to the ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on the
Mortgage Loan Schedule is true and correct in all material respects as of the
Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the Purchaser,
the Seller had good and marketable title to and was the sole owner and holder
of, each Mortgage Loan, free and clear of any pledge, lien, encumbrance or
security interest (subject to certain agreements regarding servicing as provided
in the Pooling and Servicing Agreement, subservicing agreements permitted
thereunder and that certain Servicing Rights Purchase and Sale Agreement, dated
as of September 1, 2006, between Master Servicer and Seller) and such assignment
validly and effectively transfers and conveys all legal and beneficial ownership
of the Mortgage Loans to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase and
Sale Agreement, dated as of September 1, 2006, between Master Servicer and
Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public documents
or certified copies of the incorporation or partnership or other entity
documents, as applicable, delivered in connection with the origination of such
Mortgage Loan, the related Mortgagor is an entity organized under the laws of a
state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no knowledge, that the related Mortgagor is a debtor in any
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding; provided, that solely for purposes of this
Representation 5, the Seller's knowledge shall include the knowledge of any
servicer that has serviced the Mortgage Loan on behalf of the Seller. The
"knowledge" of any such Seller as it relates to the knowledge of any servicer
shall be deemed to be knowledge derived from the servicer by the Seller based on
a specific inquiry regarding bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium and similar proceedings with respect to
the related Mortgagor.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances,
and to the extent that the Mortgaged Property is a hotel, such personal property
includes all personal property reasonably required to operate the related
Mortgaged Property as it is currently being operated by the Mortgagor. There
exists with respect to such Mortgaged Property an assignment of leases and rents
provision, either as part of the related Mortgage or as a separate document or
instrument, which establishes and creates a first priority security interest in
and to leases and rents arising in respect of the related Mortgaged Property,
subject only to Permitted Encumbrances. Except for the holder of the Subordinate
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those which were bonded or escrowed for or are
insured against pursuant to the applicable Title Insurance Policy (as defined
below). As of the Closing Date, to the Seller's knowledge, there are no
mechanics' or other similar liens or claims which have been filed for work,
labor or materials affecting the related Mortgaged Property which are or may be
prior or equal to the lien of the Mortgage, except those that are bonded or
escrowed for or which are insured against pursuant to the applicable Title
Insurance Policy (as defined below), except for Permitted Encumbrances. No
Mortgaged Property secures any mortgage loan not represented on the Mortgage
Loan Schedule; no Mortgage Loan is cross-collateralized or cross-defaulted with
any other mortgage loan other than one or more Mortgage Loans as shown on the
Mortgage Loan Schedule; no Mortgage Loan is secured by property which secures
another mortgage loan other than a Mortgage Loan as shown on the Mortgage Loan
Schedule. Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rent, operating revenues or other
personal property to the extent that possession or control of such items or
actions other than the filing of UCC Financing Statements are required in order
to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association (ALTA)
lender's title insurance policy or a comparable form of lender's title insurance
policy (or escrow instructions binding on the Title Insurer (as defined below)
and irrevocably obligating the Title Insurer to issue such title insurance
policy or a title policy commitment or pro-forma "marked up" at the closing of
the related Mortgage Loan and countersigned by the Title Insurer or its
authorized agent) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which was issued by a nationally recognized title insurance
company (the "Title Insurer") qualified to do business in the jurisdiction where
the applicable Mortgaged Property is located (unless such jurisdiction is the
State of Iowa), covering the portion of each Mortgaged Property comprised of
real estate and insuring that the related Mortgage is a valid first lien in the
original principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such Mortgaged
Property comprised of real estate, subject only to Permitted Encumbrances. Such
Title Insurance Policy was issued in connection with the origination of the
related Mortgage Loan. No claims have been made under such Title Insurance
Policy. Such Title Insurance Policy is in full force and effect and all premiums
thereon have been paid and will provide that the insured includes the owner of
the Mortgage Loan and its successors and/or assigns. No holder of the related
Mortgage has done, by act or omission, anything that would, and the Seller has
no actual knowledge of any other circumstance that would, impair the coverage
under such Title Insurance Policy. Such Title Insurance Policy contains no
exception regarding the encroachment upon any material easements of any material
permanent improvements located at the related Mortgaged Property for which the
grantee of such easement has the ability to force removal of such improvement,
or such Title Insurance Policy affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available) against losses caused by forced removal of any material
permanent improvements on the related Mortgaged Property that encroach upon any
material easements.
(9) The related Assignment of Mortgage and the related assignment of the
Assignment of Leases executed in connection with each Mortgage, if any, have
been recorded in the applicable jurisdiction (or, if not recorded, have been
submitted for recording or are in recordable form (but for the insertion of the
name and address of the assignee and any related recording information which is
not yet available to the Seller)) and constitute the legal, valid and binding
assignment of such Mortgage and the related Assignment of Leases from the Seller
to the Purchaser. The endorsement of the related Mortgage Note by the Seller
constitutes the legal, valid, binding and enforceable (except as such
enforcement may be limited by anti-deficiency laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium 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)) assignment of such Mortgage Note, and together
with such Assignment of Mortgage and the related assignment of Assignment of
Leases, legally and validly conveys all right, title and interest in such
Mortgage Loan and Mortgage Loan documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide that
such Mortgage Loan is non-recourse to the related parties thereto except that
the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or material misrepresentation, (ii) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (iii) any act of actual waste,
and (iv) any breach of the environmental covenants contained in the related
Mortgage Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including realization by judicial or, if applicable, non-judicial
foreclosure, and there is no exemption available to the related Mortgagor
which would interfere with such right of foreclosure except any statutory
right of redemption or as may be limited by anti-deficiency laws or by
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium 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).
(c) Each of the related Mortgage Notes and Mortgages are the legal, valid
and binding obligations of the related Mortgagor named on the Mortgage
Loan Schedule and each of the other related Mortgage Loan documents is the
legal, valid and binding obligation of the parties thereto (subject to any
non-recourse provisions therein), enforceable in accordance with its
terms, except as such enforcement may be limited by anti-deficiency or one
form of action laws or bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium 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 except that certain provisions of
such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but the inclusion of such
provisions does not render any of the Mortgage Loan documents invalid as a
whole, and such Mortgage Loan documents taken as a whole are enforceable
to the extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as
specifically set forth in the related Mortgage File and no such
alterations, impairments, modifications, or waivers have been completed or
consented to since August 1, 2006.
(e) With respect to each Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, currently so serves
and is named in the deed of trust or has been substituted in accordance
with applicable law, and no fees or expenses are or will become payable to
the trustee under the deed of trust, except in connection with a trustee's
sale after default by the Mortgagor other than de minimis fees paid in
connection with the release of the related Mortgaged Property or related
security for such Mortgage Loan following payment of such Mortgage Loan in
full.
(11) No Mortgage Loan has been satisfied, canceled, subordinated, released
or rescinded, in whole or in part, and the related Mortgagor has not been
released, in whole or in part, from its obligations under any related Mortgage
Loan document.
(12) Except with respect to the enforceability of any provisions requiring
the payment of default interest, late fees, additional interest, prepayment
premiums or yield maintenance charges, neither the Mortgage Loan nor any of the
related Mortgage Loan documents is subject to any right of rescission, set-off,
abatement, diminution, valid counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of any such Mortgage Loan
documents, or the exercise (in compliance with procedures permitted under
applicable law) of any right thereunder, render any Mortgage Loan documents
subject to any right of rescission, set-off, abatement, diminution, valid
counterclaim or defense, including the defense of usury (subject to
anti-deficiency or one form of action laws and to bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditor's rights generally and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law)), and no such right of rescission, set-off,
abatement, diminution, valid counterclaim or defense has been asserted with
respect thereto. None of the Mortgage Loan documents provides for a release of a
portion of the Mortgaged Property from the lien of the Mortgage except upon
payment or defeasance in full of all obligations under the Mortgage, provided
that, notwithstanding the foregoing, certain of the Mortgage Loans may allow
partial release (a) upon payment or defeasance of an Allocated Loan Amount which
may be formula based, but in no event less than 125% of the Allocated Loan
Amount, or (b) in the event the portion of the Mortgaged Property being released
was not given any material value in connection with the underwriting or
appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, after giving
effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, after giving effect to any applicable
notice and/or grace period; no such material default or breach has been waived
by the Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure or power of sale
proceeding has been initiated in respect of the related Mortgage. The Seller has
not waived any material claims against the related Mortgagor under any
non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the Mortgage
Loan Schedule has been fully disbursed as of the Closing Date specified therein
(except for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not impaired by any improvements which have not been completed. The
Seller has not, nor, to the Seller's knowledge, have any of its agents or
predecessors in interest with respect to the Mortgage Loan, in respect of
payments due on the related Mortgage Note or Mortgage, directly or indirectly,
advanced funds or induced, solicited or knowingly received any advance of funds
by a party other than the Mortgagor other than (a) interest accruing on such
Mortgage Loan from the date of such disbursement of such Mortgage Loan to the
date which preceded by thirty (30) days the first payment date under the related
Mortgage Note and (b) application and commitment fees, escrow funds, points and
reimbursements for fees and expenses, incurred in connection with the
origination and funding of the Mortgage Loan.
(b) No Mortgage Loan has capitalized interest included in its principal
balance, or provides for any shared appreciation rights or other equity
participation therein and no contingent or additional interest contingent
on cash flow or negative amortization (other than with respect to the
deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD
Loan starts to amortize no later than the Due Date of the calendar month
immediately after the calendar month in which such ARD Loan closed and
substantially fully amortizes over its stated term, which term is at least
60 months after the related Anticipated Repayment Date. Each ARD Loan has
an Anticipated Repayment Date not less than seven years following the
origination of such Mortgage Loan. If the related Mortgagor elects not to
prepay its ARD Loan in full on or prior to the Anticipated Repayment Date
pursuant to the existing terms of the Mortgage Loan or a unilateral option
(as defined in Treasury Regulations under Section 1001 of the Code) in the
Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the
Mortgage Loan's interest rate will step up to an interest rate per annum
as specified in the related Mortgage Loan documents; provided, however,
that payment of such Excess Interest shall be deferred until the principal
of such ARD Loan has been paid in full; (ii) all or a substantial portion
of the Excess Cash Flow (which is net of certain costs associated with
owning, managing and operating the related Mortgaged Property) collected
after the Anticipated Repayment Date shall be applied towards the
prepayment of such ARD Loan and once the principal balance of an ARD Loan
has been reduced to zero all Excess Cash Flow will be applied to the
payment of accrued Excess Interest; and (iii) if the property manager for
the related Mortgaged Property can be removed by or at the direction of
the mortgagee on the basis of a debt service coverage test, the subject
debt service coverage ratio shall be calculated without taking account of
any increase in the related Mortgage Interest Rate on such Mortgage Loan's
Anticipated Repayment Date. No ARD Loan provides that the property manager
for the related Mortgaged Property can be removed by or at the direction
of the mortgagee solely because of the passage of the related Anticipated
Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD
Loan with a hard lockbox requires that tenants at the related Mortgaged
Property shall (and each Mortgage Loan identified in the Mortgage Loan
Schedule as an ARD Loan with a springing lockbox requires that tenants at
the related Mortgaged Property shall, upon the occurrence of a specified
trigger event, including, but not limited to, the occurrence of the
related Anticipated Repayment Date) make rent payments into a lockbox
controlled by the holder of the Mortgage Loan and to which the holder of
the Mortgage Loan has a first perfected security interest; provided
however, with respect to each ARD Loan which is secured by a multi-family
property with a hard lockbox, or with respect to each ARD Loan which is
secured by a multi-family property with a springing lockbox, upon the
occurrence of a specified trigger event, including, but not limited to,
the occurrence of the related Anticipated Repayment Date, tenants either
pay rents to a lockbox controlled by the holder of the Mortgage Loan or
deposit rents with the property manager who will then deposit the rents
into a lockbox controlled by the holder of the Mortgage Loan.
(15) The terms of the Mortgage Loan documents evidencing such Mortgage
Loan comply in all material respects with all applicable local, state and
federal laws, regulations and the Seller has complied with all material
requirements pertaining to the origination, funding and servicing of the
Mortgage Loans, including but not limited to, usury and any and all other
material requirements of any federal, state or local law to the extent
non-compliance would have a material adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as of
the date of origination of the Mortgage Loan, based on inquiry customary in the
industry, and to the Seller's actual knowledge and subject to clause (37)
hereof, as of the Closing Date, the related Mortgaged Property is, in all
material respects, in compliance with, and is used and occupied in accordance
with, all restrictive covenants of record applicable to such Mortgaged Property
and applicable zoning laws and all inspections, licenses, permits and
certificates of occupancy required by law, ordinance or regulation to be made or
issued with regard to the Mortgaged Property have been obtained and are in full
force and effect, except to the extent (a) any material non-compliance with all
restrictive covenants of record applicable to such Mortgaged Property or
applicable zoning laws is insured by an ALTA lender's title insurance policy (or
binding commitment therefor), or the equivalent as adopted in the applicable
jurisdiction, or a law and ordinance insurance policy, or (b) the failure to
obtain or maintain such inspections, licenses, permits or certificates of
occupancy does not materially impair or materially and adversely affect the use
and/or operation of the Mortgaged Property as it was used and operated as of the
date of origination of the Mortgage Loan or the rights of a holder of the
related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title Insurance
Policy, (i) none of the material improvements that were included for the purpose
of determining the appraised value of the related Mortgaged Property at the time
of the origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such Mortgaged Property, except to the extent they
are legally nonconforming as contemplated by representation (37) below, and (ii)
no improvements on adjoining properties encroach upon such Mortgaged Property,
except in the case of either (i) or (ii) for (a) immaterial encroachments which
do not materially adversely affect the security intended to be provided by the
related Mortgage or the use, value or marketability of such Mortgaged Property
or (b) encroachments affirmatively covered by the related Title Insurance
Policy. With respect to each Mortgage Loan, the property legally described in
the survey, if any, obtained for the related Mortgaged Property for purposes of
the origination thereof is the same as the property legally described in the
Mortgage.
(19) (a) As of the date of the applicable engineering report (which was
performed within 12 months prior to the Cut-off Date) related to the Mortgaged
Property and, to Seller's knowledge as of the Closing Date, the related
Mortgaged Property is either (i) in good repair, free and clear of any damage
that would materially adversely affect the value of such Mortgaged Property as
security for such Mortgage Loan or the use and operation of the Mortgaged
Property as it was being used or operated as of the origination date or (ii)
escrows in an amount consistent with the standard utilized by the Seller with
respect to similar loans it holds for its own account have been established,
which escrows will in all events be not less than 100% of the estimated cost of
the required repairs. Since the origination date, to the Seller's knowledge,
such Mortgaged Property has not been damaged by fire, wind or other casualty or
physical condition (including, without limitation, any soil erosion or
subsidence or geological condition), which damage has not been fully repaired or
fully insured, or for which escrows in an amount consistent with the standard
utilized by the Seller with respect to loans it holds for its own account have
not been established.
(b) As of the origination date of such Mortgage Loan and to the Seller's
actual knowledge, as of the Closing Date, there are no proceedings pending
or, to the Seller's actual knowledge, threatened, for the partial or total
condemnation of the relevant Mortgaged Property; provided, that solely for
purposes of this Representation 19(b), the Seller's knowledge shall
include the knowledge of any servicer that has serviced the Mortgage Loan
on behalf of the Seller. The "knowledge" of any such Seller as it relates
to the knowledge of any servicer shall be deemed to be knowledge derived
from the servicer by the Seller based on a specific inquiry regarding
condemnation of the relevant Mortgaged Property.
(20) With respect to the Mortgage Loans that are identified on Exhibit A
as being secured in whole or in part by a leasehold estate (a "Ground Lease")
(except with respect to any Mortgage Loan also secured by the related fee
interest in the Mortgaged Property):
(a) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease, or other agreement received by the originator
of the Mortgage Loan from the ground lessor, provides that the interest of
the lessee thereunder may be encumbered by the related Mortgage and does
not restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns, in a manner that would materially and adversely
affect the security provided by the Mortgage; as of the date of
origination of the Mortgage Loan, there was no material change of record
in the terms of such Ground Lease with the exception of written
instruments which are part of the related Mortgage File and Seller has no
knowledge of any material change in the terms of such Ground Lease since
the recordation of the related Mortgage, with the exception of written
instruments which are part of the related Mortgage File;
(b) such Ground Lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the related Mortgage, other than the
related fee interest and Permitted Encumbrances and such Ground Lease is,
and shall remain, prior to any mortgage or other lien upon the related fee
interest (other than the Permitted Encumbrances) unless a nondisturbance
agreement is obtained from the holder of any mortgage on the fee interest
which is assignable to or for the benefit of the related lessee and the
related mortgagee;
(c) such Ground Lease provides that upon foreclosure of the related
Mortgage or assignment of the Mortgagor's interest in such Ground Lease in
lieu thereof, the mortgagee under such Mortgage is entitled to become the
owner of such interest upon notice to, but without the consent of, the
lessor thereunder and, in the event that such mortgagee (or any of its
successors and assigns under the Mortgage) becomes the owner of such
interest, such interest is further assignable by such mortgagee (or any of
its successors and assigns under the Mortgage) upon notice to such lessor,
but without a need to obtain the consent of such lessor;
(d) such Ground Lease is in full force and effect and no default of tenant
or ground lessor was in existence at origination, or to the Seller's
knowledge, is currently in existence under such Ground Lease, nor at
origination was, or to the Seller's knowledge, is there any condition
which, but for the passage of time or the giving of notice, would result
in a default under the terms of such Ground Lease; either such Ground
Lease or a separate agreement contains the ground lessor's covenant that
it shall not amend, modify, cancel or terminate such Ground Lease without
the prior written consent of the mortgagee under such Mortgage and any
amendment, modification, cancellation or termination of the Ground Lease
without the prior written consent of the related mortgagee, or its
successors or assigns is not binding on such mortgagee, or its successor
or assigns;
(e) such Ground Lease or other agreement requires the lessor thereunder to
give written notice of any material default by the lessee to the mortgagee
under the related Mortgage, provided that such mortgagee has provided the
lessor with notice of its lien in accordance with the provisions of such
Ground Lease; and such Ground Lease or other agreement provides that no
such notice of default and no termination of the Ground Lease in
connection with such notice of default shall be effective against such
mortgagee unless such notice of default has been given to such mortgagee
and any related Ground Lease contains the ground lessor's covenant that it
will give to the related mortgagee, or its successors or assigns, any
notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its interest in
the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (ii) such Ground Lease or other agreement provides that
(A) the mortgagee under the related Mortgage is permitted a reasonable
opportunity to cure any default under such Ground Lease which is curable,
including reasonable time to gain possession of the interest of the lessee
under the Ground Lease, after the receipt of notice of any such default
before the lessor thereunder may terminate such Ground Lease; (B) in the
case of any such default which is not curable by such mortgagee, or in the
event of the bankruptcy or insolvency of the lessee under such Ground
Lease, such mortgagee has the right, following termination of the existing
Ground Lease or rejection thereof by a bankruptcy trustee or similar
party, to enter into a new ground lease with the lessor on substantially
the same terms as the existing Ground Lease; and (C) all rights of the
Mortgagor under such Ground Lease (insofar as it relates to the Ground
Lease) may be exercised by or on behalf of such mortgagee under the
related Mortgage upon foreclosure or assignment in lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term plus one
or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee)
which extends not less than 20 years beyond the stated maturity date of
the related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage or a financially responsible
institution acting as trustee appointed by it, or consented to by it, or
by the lessor having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent institutional lender), or
to the payment in whole or in part of the outstanding principal balance of
such Mortgage Loan together with any accrued and unpaid interest thereon;
and
(i) such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by the Seller; such Ground
Lease contains a covenant (or applicable laws provide) that the lessor
thereunder is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any lessee in the
relevant portion of such Mortgaged Property subject to such Ground Lease
for any reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage.
(21) (a) Except for those Mortgage Loans set forth on Schedule I hereto
for which a lender's environmental insurance policy was obtained in lieu of an
Environmental Site Assessment, an Environmental Site Assessment relating to each
Mortgaged Property and prepared no earlier than 12 months prior to the Closing
Date was obtained and reviewed by the Seller in connection with the origination
of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the Seller
has no actual knowledge of, any adverse circumstances or conditions with
respect to or affecting the Mortgaged Property that would constitute or
result in a material violation of any Environmental Laws, other than with
respect to a Mortgaged Property (i) for which environmental insurance (as
set forth on Schedule II hereto) is maintained, or (ii) which would
require any expenditure greater than 5% of the outstanding principal
balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws for which adequate sums, but
in no event less than 125% of the estimated cost as set forth in the
Environmental Site Assessment, were reserved in connection with the
origination of the Mortgage Loan and for which the related Mortgagor has
covenanted to perform, or (iii) as to which the related Mortgagor or one
of its affiliates is currently taking or required to take such actions
(which may be the implementation of an operations and maintenance plan),
if any, with respect to such conditions or circumstances as have been
recommended by the Environmental Site Assessment or required by the
applicable governmental authority, or (iv) as to which another responsible
party not related to the Mortgagor with assets reasonably estimated by the
Seller at the time of origination to be sufficient to effect all necessary
or required remediation identified in a notice or other action from the
applicable governmental authority is currently taking or required to take
such actions, if any, with respect to such regulatory authority's order or
directive, or (v) as to which such conditions or circumstances identified
in the Environmental Site Assessment were investigated further and based
upon such additional investigation, an environmental consultant
recommended no further investigation or remediation, or (vi) as to which a
party with financial resources reasonably estimated to be adequate to cure
the condition or circumstance provided a guaranty or indemnity to the
related Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which
the related Mortgagor or other responsible party obtained a "No Further
Action" letter or other evidence reasonably acceptable to a prudent
commercial mortgage lender that applicable federal, state, or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, or (viii) which would not require substantial cleanup,
remedial action or other extraordinary response under any Environmental
Laws reasonably estimated to cost in excess of 5% of the outstanding
principal balance of such Mortgage Loan;
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for
any Hazardous Materials present at such Mortgaged Property for which, to
the extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as
sufficient to pay the cost of such remediation or other action in
accordance with such Environmental Site Assessment or (B) one of the
statements set forth in clause (b) above is true, (1) such Mortgaged
Property is not being used for the treatment or disposal of Hazardous
Materials; (2) no Hazardous Materials are being used or stored or
generated for off-site disposal or otherwise present at such Mortgaged
Property other than Hazardous Materials of such types and in such
quantities as are customarily used or stored or generated for off-site
disposal or otherwise present in or at properties of the relevant property
type; and (3) such Mortgaged Property is not subject to any environmental
hazard (including, without limitation, any situation involving Hazardous
Materials) which under the Environmental Laws would have to be eliminated
before the sale of, or which could otherwise reasonably be expected to
adversely affect in more than a de minimis manner the value or
marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller, and its successors and assigns, harmless from and against
any and all losses, liabilities, damages, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or
covenants given by the related Mortgagor in connection with such Mortgage
Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the date which is five years after the maturity date (or, in the case of
an ARD Loan, the final maturity date) of the related Mortgage Loan, is
non-cancelable by the insurer during such term and the premium for such
policy has been paid in full. All environmental assessments or updates
that were in the possession of the Seller and that relate to a Mortgaged
Property identified on Schedule I, as being insured by an In Lieu of
Policy have been delivered to or disclosed to the In Lieu of Policy
carrier issuing such policy prior to the issuance of such policy.
(22) As of the date of origination of the related Mortgage Loan, and, as
of the Closing Date, the Mortgaged Property is covered by insurance policies
providing the coverage described below and the Mortgage Loan documents permit
the mortgagee to require the coverage described below. All premiums with respect
to the Insurance Policies insuring each Mortgaged Property have been paid in a
timely manner or escrowed to the extent required by the Mortgage Loan documents,
and the Seller has not received any notice of cancellation or termination. The
relevant Servicing File contains the Insurance Policy required for such Mortgage
Loan or a certificate of insurance for such Insurance Policy. Each Mortgage
requires that the related Mortgaged Property and all improvements thereon are
covered by Insurance Policies or providing coverage for losses (subject to
customary deductibles) sustained by (A) fire and extended perils included within
the classification "All Risk of Physical Loss" in an amount sufficient to
prevent the Mortgagor from being deemed a co-insurer and to provide coverage in
an amount equal to the lesser of the full replacement cost of such Mortgaged
Property (in some cases exclusive of excavations, underground utilities,
foundations and footings) and the outstanding principal balance of the related
Mortgage Loan with an appropriate endorsement to avoid application of any
coinsurance provision; such policies contain a standard mortgage clause naming
mortgagee and its successor in interest as additional insureds or loss payee, as
applicable; (B) business interruption or rental loss insurance in an amount at
least equal to (a) 12 months of operations or (b) in some cases all rents and
other amounts customarily insured under this type of insurance of the Mortgaged
Property; (C) flood insurance (if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency ("FEMA"), with respect to certain Mortgage Loans and the
Secretary of Housing and Urban Development with respect to other Mortgage Loans,
as having special flood hazards) in an amount not to exceed amounts prescribed
by FEMA; (D) workers' compensation, if required by law; (E) comprehensive
general liability insurance in an amount consistent with the standard utilized
by the Seller with respect to loans it holds for its own account, but not less
than $1 million; all such Insurance Policies contain clauses providing they are
not terminable and may not be terminated, without thirty (30) days prior written
notice to the mortgagee (except where applicable law requires a shorter period
or except for nonpayment of premiums, in which case not less than ten (10) days
prior written notice to the mortgagee is required). In addition, each Mortgage
permits the related mortgagee to make premium payments to prevent the
cancellation thereof and shall entitle such mortgagee to reimbursement therefor.
Any insurance proceeds in respect of a casualty loss or taking will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or the payment of the outstanding principal balance of the related
Mortgage Loan together with any accrued interest thereon. If the Mortgaged
Property is located within 25 miles of the coast of the Gulf of Mexico or the
Atlantic coast of Florida, Georgia, South Carolina or North Carolina, such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the full insurable value, or 100% of the replacement cost, of the
improvements located on the related Mortgaged Property. The related Mortgaged
Property is insured by an Insurance Policy, issued by an insurer meeting the
requirements of such Mortgage Loan and having a claims-paying or financial
strength rating of at least "A-:VIII" from A.M. Best Company or "A-" (or the
equivalent) from Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., Fitch, Inc. or Xxxxx'x Investors Service, Inc. An
architectural or engineering consultant has performed an analysis of each of the
Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the
structural and seismic condition of such property, for the sole purpose of
assessing the probable maximum loss ("PML") for the Mortgaged Property in the
event of an earthquake. In such instance, the PML was based on a 450 or 475 year
return period, an exposure period of 50 years and a 10% probability of
exceedence. If the resulting report concluded that the PML would exceed 20% of
the amount of the replacement costs of the improvements, earthquake insurance on
such Mortgaged Property was obtained by an insurer rated at least "A-:VIII" by
A.M. Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., Fitch, Inc. or Xxxxx'x
Investors Service, Inc. To the Seller's actual knowledge, the insurer issuing
each of the foregoing insurance policies is qualified to write insurance in the
jurisdiction where the related Mortgaged Property is located.
(23) All amounts required to be deposited by each Mortgagor at origination
under the related Mortgage Loan documents have been deposited or have been
withheld from the related Mortgage Loan proceeds at origination and there are no
deficiencies with regard thereto.
(24) Whether or not a Mortgage Loan was originated by the Seller, to the
Seller's knowledge, with respect to each Mortgage Loan originated by the Seller
and each Mortgage Loan originated by any Person other than the Seller, as of the
date of origination of the related Mortgage Loan, and, to the Seller's actual
knowledge, with respect to each Mortgage Loan originated by the Seller and any
prior holder of the Mortgage Loan, as of the Closing Date, there are no actions,
suits, arbitrations or governmental investigations or proceedings by or before
any court or other governmental authority or agency now pending against or
affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property, the security intended to be provided with respect to the related
Mortgage Loan, or the ability of such Mortgagor and/or the current use of such
Mortgaged Property to generate net cash flow to pay principal, interest and
other amounts due under the related Mortgage Loan; and to the Seller's actual
knowledge there are no such actions, suits or proceedings threatened against
such Mortgagor.
(25) The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller or, to the knowledge of the Seller, any
predecessor or prior servicer with respect to the Mortgage Loan, have been in
all material respects legal and have met customary industry standards.
(26) The originator of the Mortgage Loan or the Seller has inspected or
caused to be inspected each related Mortgaged Property within the 12 months
prior to the Closing Date.
(27) The Mortgage Loan documents require the Mortgagor to provide the
holder of the Mortgage Loan with at least annual operating statements, financial
statements and except for Mortgage Loans for which the related Mortgaged
Property is leased to a single tenant, rent rolls.
(28) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller, and all
amounts required to be deposited by the applicable Mortgagor under the related
Mortgage Loan documents have been deposited, and there are no deficiencies with
regard thereto (subject to any applicable notice and cure period). All of the
Seller's interest in such escrows and deposits will be conveyed by the Seller to
the Purchaser hereunder.
(29) No two or more Mortgage Loans representing more than 5% of the
aggregate outstanding principal amount of all the mortgage loans included in the
Trust Fund has the same Mortgagor or, to the Seller's knowledge, are to
Mortgagors which are entities controlled by one another or under common control.
(30) Each Mortgagor with respect to a Mortgage Loan with a principal
balance as of the Cut-off Date in excess of $15,000,000 included in the Trust
Fund is an entity whose organizational documents or related Mortgage Loan
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents or Mortgage Loan documents provide that it shall engage
solely in the business of owning and operating the Mortgaged Property and which
does not engage in any business unrelated to such property and the financing
thereof, does not have any assets other than those related to its interest in
the Mortgaged Property or the financing thereof or any indebtedness other than
as permitted by the related Mortgage or the other Mortgage Loan documents, and
the organizational documents of which require that it have its own separate
books and records and its own accounts, in each case which are separate and
apart from the books and records and accounts of any other Person.
(31) 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 (1) at the date the Mortgage Loan was
originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (2) at the Closing Date at least equal to 80% of the original
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 (1) and (2) of this paragraph (31) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loan; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which 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)). If the Mortgage Loan was "significantly modified" prior to
the Closing Date so as to result in a taxable exchange under Section 1001 of the
Code, it either (i) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (ii) satisfies the provisions of
either clause (A)(1) above (substituting the date of the last such modification
for the date the Mortgage Loan was originated) or clause (A)(2), including the
proviso thereto. The Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard to the rule in Treasury
Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans
as qualified mortgages). Any prepayment premium and yield maintenance charges
applicable to the Mortgage Loan constitute "customary prepayment penalties"
within the meaning of Treasury Regulations Section 1.860G-1(b)(2).
(32) The Mortgage Loans contain a "due on sale" clause, which provides for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan if, without the prior written consent of the holder of the Mortgage Loan,
the property subject to the Mortgage, or any controlling interest therein, is
directly or indirectly transferred or sold (except that it may provide for
transfers by devise, descent or operation of law upon the death of a member,
manager, general partner or shareholder of a mortgagor and that it may provide
for assignments subject to the Mortgage Loan holder's approval of transferee,
transfers to affiliates, transfers to family members for estate planning
purposes, transfers among existing members, partners or shareholders in
Mortgagor or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage Loan documents contain a "due on
encumbrance" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if the property subject to the
Mortgage or any controlling interest in the Mortgagor is further pledged or
encumbered, unless the prior written consent of the holder of the Mortgage Loan
is obtained (except that it may provide for assignments subject to the Mortgage
Loan holder's approval of transferee, transfers to affiliates or transfers of
passive interests so long as the key principals or general partner retains
control). The Mortgage Loan documents require the Mortgagor to pay all
reasonable fees and expenses of the holder of the Mortgage associated with
assumptions or transfers of interest in connection with any repayment of the
Mortgage Loan on the related Mortgaged Property. As of the Closing Date, the
Seller holds no preferred equity interest in any Mortgagor and the Seller holds
no mezzanine debt related to such Mortgaged Property.
(33) Except with respect to the AB Mortgage Loans, each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
(34) Each Mortgage Loan containing provisions for defeasance of mortgage
collateral provides that: defeasance may not occur any earlier than two years
after the Closing Date; and requires or provides (A) the replacement collateral
consist of U.S. "government securities," within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i), in an amount sufficient to make all
scheduled payments under the Mortgage Note when due (up to the maturity date for
the related Mortgage Loan, the Anticipated Repayment Date for ARD Loans or the
date on which the Mortgagor may prepay the related Mortgage Loan without payment
of any prepayment penalty); (B) the loan may be assumed by a Single Purpose
Entity approved by the holder of the Mortgage Loan; (C) counsel provide an
opinion that the trustee has a perfected security interest in such collateral
prior to any other claim or interest; and (D) such other documents and
certifications as the mortgagee may reasonably require which may include,
without limitation, (i) a certification that the purpose of the defeasance is to
facilitate the disposition of the mortgaged real property or any other customary
commercial transaction and not to be part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages and (ii) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage Note
when due. Each Mortgage Loan containing provisions for defeasance provides that,
in addition to any cost associated with defeasance, the related Mortgagor shall
pay, as of the date the mortgage collateral is defeased, all scheduled and
accrued interest and principal due as well as an amount sufficient to defease in
full the Mortgage Loan. In addition, if the related Mortgage Loan permits
defeasance, then the Mortgage Loan documents provide that the related Mortgagor
shall (a) pay all fees, including, without limitation, reasonable attorney's
fees, associated with the defeasance of the Mortgage Loan and all other expenses
associated with the defeasance, or (b) provide all opinions required under the
related Mortgage Loan documents, and in the case of any Mortgage Loan with an
outstanding principal balance as of the Cut-off Date of $40,000,000 or greater,
(1) a REMIC opinion and (2) rating agency letters confirming that no downgrade
or qualification shall occur as a result of the defeasance.
(35) In the event that a Mortgage Loan is secured by more than one
Mortgaged Property, then, in connection with a release of less than all of such
Mortgaged Properties, a Mortgaged Property may not be released as collateral for
the related Mortgage Loan unless, in connection with such release, an amount
equal to not less than 125% of the Allocated Loan Amount for such Mortgaged
Property is prepaid or, in the case of a defeasance, an amount equal to 125% of
the Allocated Loan Amount is defeased through the deposit of replacement
collateral (as contemplated in clause (34) hereof) sufficient to make all
scheduled payments with respect to such defeased amount, or such release is
otherwise in accordance with the terms of the Mortgage Loan documents.
(36) Each Mortgaged Property is owned by the related Mortgagor, except for
Mortgaged Properties which are secured in whole or in a part by a Ground Lease
and for out-parcels, and is used and occupied for commercial or multifamily
residential purposes in accordance with applicable law.
(37) Any non-conformity with applicable zoning laws constitutes a legal
non-conforming use or structure (i) which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or (ii) for which law and ordinance
insurance coverage has been obtained in amounts consistent with the standards
utilized by the Seller.
(38) Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the related Mortgagor under the Mortgage Loan.
The Mortgage Loan was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.
(39) No court of competent jurisdiction will determine in a final decree
that fraud, with respect to the Mortgage Loans has taken place on the part of
the Seller or, to the Seller's actual knowledge, on the part of any originator,
in connection with the origination of such Mortgage Loan.
(40) The related Mortgage or other Mortgage Loan documents provide a grace
period for delinquent Monthly Payments no longer than ten (10) days from the
applicable payment date.
(41) The following statements are true with respect to the related
Mortgaged Property: (a) the Mortgaged Property is located on or adjacent to a
dedicated road or has access to an irrevocable easement permitting ingress and
egress and (b) the Mortgaged Property is served by public or private utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Mortgaged Property is currently being utilized.
(42) None of the Mortgage Loan documents contain any provision that
expressly excuses the related borrower from obtaining and maintaining insurance
coverage for acts of terrorism and, in circumstances where terrorism insurance
is not expressly required, the mortgagee is not prohibited from requesting that
the related borrower maintain such insurance, in each case, to the extent such
insurance coverage is generally available for like properties in such
jurisdictions at commercially reasonable rates. Each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
(43) 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.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged Property,
the portion of principal of the related Mortgage Loan allocated to such
Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all or
substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the Pooling
and Servicing Agreement.
The term "Environmental Site Assessment" shall mean (x) a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials and being generally consistent with assessments of
environmental hazards undertaken by the Seller for similar properties, as of the
date of such assessment, and (y) if in accordance with customary industry
standards a reasonable lender would require it, a Phase II environmental report,
each report in clauses (x) and (y) prepared by an independent licensed third
party professional experienced in environmental matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the Servicer and
discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest on
an ARD Loan in accordance with the following terms. Commencing on the respective
Anticipated Repayment Date each ARD Loan (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan)
generally will bear interest at a fixed rate (the "Revised Rate") per annum
equal to the Mortgage Interest Rate plus a percentage specified in the related
Mortgage Loan documents. Until the principal balance of each such Mortgage Loan
has been reduced to zero (pursuant to its existing terms or a unilateral option,
as defined in Treasury Regulations under Section 1001 of the Code, in the
Mortgage Loans exercisable during the term of the Mortgage Loan), such Mortgage
Loan will only be required to pay interest at the Mortgage Interest Rate and the
interest accrued at the excess of the related Revised Rate over the related
Mortgage Interest Rate will be deferred (such accrued and deferred interest and
interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon one
or more of the specified documents or other information in connection with
a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all
material respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein
to be true, accurate and complete in all material respects and has no
actual knowledge of any facts or circumstances which would render reliance
thereon unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties;
(b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject, and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated,
enjoyment, value or marketability of such Mortgaged Property, provided,
however, that, for the avoidance of doubt, Permitted Encumbrances shall
exclude all pari passu, second, junior and subordinated mortgages but
shall not exclude mortgages that secure Mortgage Loans that are
cross-collateralized with other Mortgage Loans.
Other. For purposes of these representations and warranties, the term "to
the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
inaccurate based upon the Seller's reasonable inquiry and during the course of
such inquiry, no such officer, employee or agent of the Seller has obtained any
actual knowledge of any facts or circumstances that would cause such person to
believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that a director, officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS
OBTAINED IN LIEU OF AN ENVIRONMENTAL SITE ASSESSMENT
None
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH
ENVIRONMENTAL INSURANCE IS MAINTAINED
Loan No. 5 (REPM Portfolio)
EXHIBIT C
EXCEPTIONS
CIBC Inc. Exceptions to Representations and Warranties - JPMCC 2006-CIBC16
Rep. #
6. Loan No. 75 (Winchester Business Park) - The Mortgaged Property also
secures indebtedness in the amount of $410,000 (the "Winchester B Note"),
which Winchester B Note was sold as of the closing date of the Mortgage
Loan to CBA-Mezzanine Capital, LLC or an affiliate thereof. The
Winchester B Note is secured by the Mortgage, and is subordinate to the
Mortgage Loan being sold hereby pursuant to an Intercreditor Agreement, a
copy of which is included in the Mortgage File. A failure to make a
payment due under the Winchester B Note constitutes a default under this
Mortgage Loan.
Loan No. 35 (Church Square) - The Mortgaged Property also secures
indebtedness in the amount of $2,812,176.20 evidenced by a note in favor
of the City of Cleveland (the "City Note"). The City Note is secured by
the Mortgage, and is pari passu in right of payment to the Mortgage Loan
being sold hereby pursuant to an Intercreditor Agreement, a copy of which
is included in the Mortgage File.
Loan Xx. 00 (Xxxxxxx Xxxx Xxxxxxx Xxxxxx X-0) - this property is part of
a planned development in Orlando, Florida. The Declaration of Covenants,
Conditions, Restrictions and Obligations ("Declaration") recorded against
this parcel and all other parcels in "Xxxxxxx Park Village" grants the
initial Declarant (and its successors and assigns) the following rights:
(a) a right of first refusal to purchase the property, (b) a right to
re-purchase the property if, among other things, certain construction
related defaults occur under the Declaration and (c) a right to compel
the sale of a property if, among other things, certain construction
related defaults occur under the Declaration; however, the Declaration
provides that if Declarant exercises any of such rights under (a), (b) or
(c) above, the consideration paid by the Declarant shall include, among
other things, full repayment of all mortgages against the property
together with all premiums and fees due under such mortgage.
Loan No. 39 (Xxxxxxx Plaza) - If more than 50% of the Mortgaged Property
becomes vacant, then the grocery store that is the shadow-anchor of the
Mortgaged Property has the right to purchase the Mortgaged Property
pursuant to a declaration of covenants; pursuant to an estoppel from the
grocery store, this right has been subordinated to the Mortgage. The
purchase price is the outstanding amount of any loan encumbering the
Mortgaged Property together with all costs and expenses of the holder of
the mortgage incurred in connection with such purchase.
7. Loan Nos. 75, 35, 78 and 39 (Winchester Business Park, Church Square,
Xxxxxxx Park Village Center B-1 and Xxxxxxx Plaza) - See exceptions to
Representation #6 above.
8. Loan Nos. 75, 35, 78 and 39 (Winchester Business Park, Church Square,
Xxxxxxx Park Village Center B-1 and Xxxxxxx Plaza) - See exceptions to
Representation #6 above.
10(a). Loan No. 19 (Marquis at Frankford Springs) - The related Mortgage Loan
documents do not include a non-recourse carveout for "waste"; however,
the documents do contain a non-recourse carveout for the following:
Damage to the Mortgaged Property as a result of the intentional
misconduct or gross negligence of Mortgagor or Indemnitor (as defined in
the Mortgage Loan documents) or any holder of equity interests in
Mortgagor or Indemnitor, or any person acting on behalf of, or at the
direction of, Mortgagor or Indemnitor, or any removal of the Mortgaged
Property in violation of the terms of the Mortgage Loan documents.
Loan Xx. 00 (Xxxx Xxxxx - Xxxxxx Xxxx) - The Mortgagors for the Mortgage
Loan include one Mortgagor that holds the fee interest in the related
Mortgaged Property and one Mortgagor that holds the leasehold interest in
the related Mortgaged Property pursuant to a ground lease with the
Mortgagor that holds the fee interest. The Mortgagor holding the fee
interest in the related Mortgaged Property, but not the Mortgagor holding
the leasehold interest in the related Mortgaged Property, is liable for
the non-recourse carveouts set forth in the related Mortgage Loan
documents.
10(d) Loan No. 22 (Florida Coastal School of Law) - The related Mortgage Loan
documents were amended as of August 31, 2006 to reflect the completion of
the construction of the related improvements; a copy of the instruments
effecting such amendment are included in the related Mortgage File.
Loan Xx. 00 (Xxxxxxxx xx Xxx Xxxxxx) - Xxxxxxx tenant-in-common interests
in the Mortgaged Property were transferred subsequent to August 1, 2006.
In connection with such transfers, each new tenant-in-common assumed,
jointly and severally, the obligations of the Mortgagor under the
Mortgage Loan documents and a principal of each new tenant-in-common
executed an indemnity and guaranty agreement with respect to certain
non-recourse carveouts; a copy such loan assumption and indemnity
agreements are included in the related Mortgage File.
The following loans closed on or after August 1, 2006:
Loan No. 3 (Prime Retail Outlets Portfolio)
Loan No. 35 (Church Square)
Loan No. 39 (Xxxxxxx Plaza)
Loan Xx. 00 (Xxxxxxxxxx Xxxxxxxx Xxxxxx)
Loan Xx. 00 (Xxx Xxxxx xx Xxxxx Xxxxxx)
Loan No. 77 (151 East 3rd Street)
Loan Xx. 00 (Xxxxxxx Xxxx Xxxxxxx Xxxxxx X-0)
Loan Xx. 00 (xxxxxxxXxxxxx0000 Xxxx Xxxxxx Xxxxxx)
00. Loan No. 5 (REPM Portfolio) - The Mortgage Loan documents permit partial
defeasance of an individual property (a "Parcel"). The amount defeased
shall be the greatest of: (a) 120% of the Allocated Loan Amount with
respect to such Parcel, (b) an amount such that, after giving effect to
such partial defeasance and the concurrent partial defeasance of the
Mezzanine Loan, the Debt Service Coverage Ratio for the Undefeased Note
and Undefeased Mezzanine Note, based on income from the Remaining Parcel,
shall be not less than the greater of (x) 1.10:1.00, and (y) the Debt
Service Coverage Ratio for the Note and the Mezzanine Note, based on
income from both the Release Parcel and the Remaining Parcel, determined
immediately prior to the Partial Defeasance Date and (c) an amount such
that, after giving effect to such partial defeasance and the concurrent
partial defeasance of the Mezzanine Loan, the Loan-to-Value Ratio after
the Partial Defeasance Date based on the aggregate principal indebtedness
under the Undefeased Note and the Undefeased Mezzanine Note, shall be not
greater than the lesser of (x) eighty-five percent (85%), and (y) the
Loan-to-Value Ratio based on the aggregate principal indebtedness under
this Note and the Mezzanine Note, from both the Release Parcel and the
Remaining Parcel, determined immediately prior to the Partial Defeasance
Date. Capitalized terms not defined in this paragraph shall have the
meaning given to such terms in the Mortgage Note with respect to this
Mortgage Loan.
Loan No. 8 (City View Portfolio 1) - The Mortgage Loan documents permit
partial defeasance of an individual property (a "Parcel"). The amount
defeased shall be the greatest of: (a) 115% of the allocated loan amount
with respect to such Parcel, (b) an amount such that, after giving effect
to such partial defeasance, the DSCR for the Mortgage Loan, based on
income from the remaining properties, shall be not less than the greater
of (x) 1.25:1.00 and (y) the DSCR for the Mortgage Loan immediately prior
to such partial defeasance and (c) an amount such that, after giving
effect to such partial defeasance, the loan-to-value ratio of the
Mortgage Loan shall be not greater than the lesser of (x) 80% and (y) the
loan-to-value ratio of the Mortgage Loan determined immediately prior to
such partial defeasance.
Loan No. 8 (City View Portfolio 1) - The Mortgage Loan is secured by
multiple properties. The related Mortgage Loan documents permit the sale
of an individual property (a "Partial Assumption Property") to a third
party buyer (a "Partial Assumption Buyer") and the partial assumption of
the Mortgage Loan by the Partial Assumption Buyer upon the following
terms and conditions: (a) the Partial Assumption Buyer is approved by the
holder of the Mortgage (in accordance with the requirements for approval
set forth in the related Mortgage), (b) the Mortgagor under the Mortgage
Loan at the time of the sale of the Partial Assumption Property (the
"Existing Borrower") obtains a "no-downgrade" confirmation from the
rating agencies with respect to such sale and partial assumption, (c) the
Mortgage Loan is severed into 2 loans, (i) one of which (the "Partial
Assumption Loan") will be in an amount equal to the allocated loan amount
of the Partial Assumption Property (the Partial Assumption Buyer will be
the obligor under the Partial Assumption Loan) and (ii) the other of
which (the "Remaining Property Loan") shall be in an amount equal to the
principal balance of the original Mortgage Loan less the amount of the
Partial Assumption Loan (the Existing Borrower will be the obligor under
the Remaining Property Loan), and (d) the Partial Assumption Loan shall
have a debt service coverage ratio of at least 1.30:1.0 and a loan to
value of no more than 80%, and the Remaining Property Loan shall have a
debt service coverage ratio of at least 1.25:1.0 (or if three or less
properties constitute the remaining property, a debt service coverage
ratio of at least 1.30:1.0) and a loan to value ratio of no more than
80%; however, subject to the defeasance lockout period under the Mortgage
Loan documents, a partial defeasance is permitted in order achieve the
foregoing debt service coverage and loan to value ratios.
Loan No. 3 (Prime Retail Outlets Portfolio) - The Mortgage Loan documents
permit partial defeasance of an individual property (a "Parcel"). The
amount defeased shall be the greater of: (a) 120% of the allocated loan
amount with respect to such Parcel and (b) an amount such that, after
giving effect to such partial defeasance, the DSCR for the Mortgage Loan,
based on income from the remaining properties, shall be not less than the
greater of (x) 1.30:1.00 and (y) the DSCR for the Mortgage Loan
immediately prior to such partial defeasance.
19. Loan Nos. 61 and 27 (Trail Plaza and USDA - Salt Lake City) - the
engineering reports with respect to these Mortgaged Properties were not
prepared within 12 months of the Closing Date.
20 Loan No. 3 (Prime Retail Outlets Portfolio) - Rep #20(g) - the Prime
Outlets at Gaffney (South Carolina) property is subject to a ground lease
that expires in 2025 (approximately 9 years beyond the stated maturity
date of the Loan); however, the fee interest in this property is owned by
Cherokee County, South Carolina as part of an economic development
inducement and Mortgagor has an option to purchase the fee interest in
this property at any time during the term of the ground lease for a price
equal to unpaid balance of certain bonds (which are owned by Mortgagor
and have been pledged to holder of the Mortgage Loan). The purchase price
for the fee interest in this property just prior to lease expiration in
2025 is $1.
21. Loan Nos. 61 and 27 (Trail Plaza and USDA - Salt Lake City) - the
Environmental Site Assessments with respect to these Mortgaged Properties
were not prepared within 12 months of the Closing Date.
22. Loan No. 7 (Lightstone Michigan Multifamily Portfolio) - The related
Mortgagor maintains a $10 million flood insurance policy that provides
for a deductible of $500,000. The principal of the Mortgagor has
indemnified the holder of the Mortgage Loan against any loss arising by
reason of this deductible. According to the financial statements provided
to the Mortgage Loan Seller in connection with the closing of this
Mortgage Loan, the net worth of this principal is in excess of $200
million.
Loan No. 30 (American Garment Center) -- The insurer providing property
insurance coverage for the initial $800,000 portion of insured losses is
rated "A-:VII" by A.M. Best Company.
Loan No. 73 (Mission Creek) -- The property insurance coverage for a
portion of this Property is maintained by the related Tenant, Kroger Co.
(d/b/a Food4Less), rated BBB- by Standard & Poors, and this insurance
coverage includes a $1 million self-insured retention by such Tenant.
Loan No. 81 (Home Depot - Forest Lake) -- The property and liability
insurance provided with respect to this Mortgage Loan is provided by the
related Tenant, Home Depot U.S.A., Inc., rated AA by Standard & Poors,
and includes a $1 million self-insured retention by such Tenant.
Loan No. 88 (UPS Service Center) - The insurance carrier of the insurance
policies, UPINSCO, is a subsidiary of UPS, the tenant of the related
Mortgaged Property, but is not a rated company. Pursuant to the related
mortgage loan documents, the indemnitor of the related Mortgage Loan
indemnifies the holder of the Mortgage Loan for any shortage or
difference in insurance proceeds paid under such policies and what would
have been paid under policies issued by a carrier meeting the
requirements in the related Mortgage Loan documents.
Loan No. 109 (Shoppes of Xxxx Club) - The related Mortgagor's "all risk"
insurance policy does not include wind storm insurance. However, pursuant
to the related Mortgage Loan documents the principals of the related
Mortgagor indemnify the holder of the related Mortgage Loan against any
loss or damage resulting from the failure of the related Mortgagor to
obtain and maintain wind storm insurance in accordance with the insurance
requirements of the holder of the related Mortgage Loan.
29. Loan Nos. 3 and 7 (Prime Retail Outlets Portfolio and Lightstone Michigan
Multifamily Portfolio) - the Mortgagors under these Mortgage Loans
totaling approximately $215,000,000 are under common control.
32. Loan Nos. 75 and 00 (Xxxxxxxxxx Xxxxxxxx Xxxx and Church Square) - See
exceptions to Representation #6 above.
Loan No. 5 (REPM Portfolio) - Holders of direct or indirect equity
interests in the Mortgagor have pledged their direct or indirect
interests in the Mortgagor to secure a mezzanine loan (a "Mezzanine
Loan"). In connection with such Mezzanine Loan, the Seller and the
mezzanine lender entered into an intercreditor agreement, a copy of which
is included in the related Mortgage File.
The following applies to each of the Mortgage Loans listed below: The
related Mortgage provides that direct or indirect equity interests in the
related Mortgagor may be pledged as security for indebtedness of the
owners of direct or indirect equity interests in the related Mortgagor,
under certain conditions more fully set forth in the related Mortgage
(including, without limitation, limits on the maximum aggregate
loan-to-value ratio (inclusive of both the Mortgage Loan and such
mezzanine indebtedness) and the minimum debt service coverage ratio
(inclusive of both the Mortgage Loan and such mezzanine indebtedness) and
the requirement of an intercreditor agreement satisfactory to the holder
of the Mortgage Loan).
Loan No. 3 (Prime Retail Outlets Portfolio)
Loan No. 20 (Texere Plaza)
Loan No. 23 (Fair Oaks Mall)
Loan Xx. 00 (Xxxxxxx Xxxxx)
Xxxx Xx. 00 (Xxxxxx Xxxxx)
Loan No. 43 (5000 West Sunset Boulevard)
Loan Xx. 00 (Xxxxxxxxxx Xxxxxxxx Xxxxxx)
Xxxx Xx. 00 (222 West 37th Street)
Loan Nos. 33 and 19 (Crossing at Mid Rivers and Marquis at Frankford
Springs) - The following applies to each of these Mortgage Loans: The
Mortgage Loan documents permit the transfer of tenant-in common interests
in the Mortgaged Property, subject to the requirements set forth in the
Mortgage Loan documents with respect to such tenant-in-common interest
transfers.
Loan No. 22 (Florida Coastal School of Law) - Transfers of direct or
indirect equity interests in Infilaw Corporation or any constituent
entity of Infilaw Corporation shall not require the consent of Lender. In
addition, the pledge of the stock in Florida Coastal School of Law, Inc.
("Florida Coastal") shall not require the consent of Lender, provided
that (i) such pledge is to secure an operating debt facility of Florida
Coastal, (ii) such operating debt facility is also secured by a pledge of
(x) all or substantially all of the assets of Florida Coastal and (y)
Florida Coastal's ownership interests in all or substantially all
subsidiaries of Florida Coastal other than Florida Coastal's direct or
indirect ownership interests in the Borrower and (iii) the lender under
such operating debt facility and the beneficiary or holder of such pledge
shall be a Qualified Holder (as defined in the Mortgage). In no event
shall such operating debt facility be secured by the Property.
35. Loan Nos. 5 and 3 (REPM Portfolio, City View Portfolio 1 and Prime Retail
Outlets Portfolio) - See exceptions to Representation #12 above.
42. Loan No. 5 (REPM Portfolio) - The Mortgage Loan documents provide that in
the event terrorism insurance is not generally included within "all-risk"
policies provided by insurers acceptable to the holder of the Mortgage
Loan, Mortgagor will only be responsible for obtaining terrorism coverage
to the extent available at an annual premium cost of one hundred fifty
percent (150%) of the cost of the premium for the "all-risk" casualty
insurance required under the Mortgage Loan documents (exclusive of
terrorism coverage) during the first year of the Mortgage Loan.
Loan No. 7 (Lightstone Michigan Multifamily Portfolio) - The Mortgage
Loan documents provide that in the event the commercial property and
business income insurance required under the Mortgage excludes perils of
terrorism and acts of terrorism, then Mortgagor shall maintain a separate
commercial property and business income insurance policy for loss
resulting from perils and acts of terrorism on terms (including amounts,
except as provided for below) consistent with those required under
subsection 1.4 (a) and (f) of the Mortgage (a "Stand Alone Terrorism
Insurance Policy") all times during the term of the Mortgage Loan;
provided, that, Mortgagor shall not be required to maintain terrorism
coverage for amounts in excess of the amount of coverage that, could be
obtained under a Stand Alone Terrorism Insurance Policy upon the payment
of an annual premium in an amount (the "Terrorism Insurance Cap") equal
to two (2) times the actual premium then paid by Mortgagor to satisfy the
requirements of section (a) and (b) for the commercial property and
business income insurance for the Mortgaged Property.
Loan No. 87 (Panama City Crossing) - The Mortgage Loan documents provide
that in the event that terrorism insurance rates rise significantly or
such coverage is not available with an all-risk policy, Mortgagor will
only be responsible for obtaining terrorism coverage to the extent
available at an annual cost of 150% of the cost of the then current
premium for all-risk casualty insurance without terrorism coverage.
Loan No. 57 (Sunrise Medical) - The excess umbrella insurance policy
maintained on the related Mortgage Property does not include insurance
for acts of terrorism.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of CIBC Inc.,
a Delaware corporation (the "Company"), hereby certify as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
September 21, 2006 (the "Agreement"), between the Company and X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., and all of the representations
and warranties of the Company under the Agreement are true and correct in
all material respects on and as of the date hereof with the same force and
effect as if made on and as of the date hereof.
2. The Company has complied with all the covenants and satisfied all the
conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice
or the passage of time or both, would constitute a default under the
Agreement.
3. I have examined the information regarding the Mortgage Loans in each Free
Writing Prospectus (as defined in the Indemnification Agreement), when
read in conjunction with the other Time of Sale Information (as defined in
the Indemnification Agreement), the Prospectus, dated September 12, 2006,
as supplemented by the Prospectus Supplement, dated September 14, 2006
(collectively, the "Prospectus"), relating to the offering of the Class
X-0, Xxxxx X-0, Class A-3FL, Class X-0X, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class X-1, Class X-2, Class B, Class C and
Class D Certificates, the Private Placement Memorandum, dated September
14, 2006 (the "Privately Offered Certificate Private Placement
Memorandum"), relating to the offering of the Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificates, and the Residual Private Placement Memorandum, dated
September 14, 2006 (together with the Privately Offered Certificate
Private Placement Memorandum, the "Private Placement Memoranda"), relating
to the offering of the Class R and Class LR Certificates, and nothing has
come to my attention that would lead me to believe that any Free Writing
Prospectus, including any diskette attached thereto, when read in
conjunction with the other Time of Sale Information, as of the Time of
Sale (as defined in the Indemnification Agreement) or as of the date
hereof, the Prospectus, as of the date of the Prospectus Supplement or as
of the date hereof, or the Private Placement Memoranda, as of the date of
the Private Placement Memoranda or as of the date hereof, included or
includes any untrue statement of a material fact relating to the Mortgage
Loans or in the case of any Free Writing Prospectus, when read in
conjunction with the other Time of Sale Information, omitted or omits to
state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances
under which they were made, not misleading.
Capitalized terms used herein without definition have the meanings given
them in the Agreement.
IN WITNESS WHEREOF, I have signed my name this __ day of ______ 2006.
By:_____________________________
Name:
Title:
