EXHIBIT 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 22, 2006
(this "Agreement"), is entered into between Countrywide Commercial Real Estate
Finance, Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Wachovia Bank, National
Association ("Wachovia") as master servicer (the "Master Servicer"), Midland
Loan Services, Inc. as special servicer (the "Special Servicer") and LaSalle
Bank National Association as trustee (the "Trustee"). Capitalized terms used but
not defined herein (including the schedules attached hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of March 22, 2006 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), EHY Securities
(USA), LLC ("EHY"), Banc of America Securities LLC ("Banc of America"), Xxxxxxx,
Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"); Xxxxxxx Xxxxx, Countrywide Securities, EHY, Banc of America, Xxxxxxx
Sachs and Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"),
whereby the Purchaser will sell to the Underwriters all of the Certificates that
are to be registered under the Securities Act of 1933, as amended (such
Certificates, the "Publicly-Offered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated as of March 22, 2006 (the
"Certificate Purchase Agreement"), with Xxxxxxx Xxxxx for itself and as
representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
$889,005,476 (the "Countrywide Mortgage Loan Balance") (subject to a variance of
plus or minus 5.0%) as of the close of business on the Cut-off Date, after
giving effect to any payments due on or before such date, whether or not such
payments are received. The Countrywide Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-off Date
(after giving effect to any payments due on or before such date, whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-off Date Pool Balance") of $2,141,833,152 (subject to a variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans shall take place
on March 30, 2006 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 99.9066% of the
Countrywide Mortgage Loan Balance as of the Cut-off Date, plus (ii) $4,159,702,
which amount represents the amount of interest accrued on the Countrywide
Mortgage Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the
Seller's receipt of the Purchase Consideration and the satisfaction or waiver of
the conditions to closing set forth in Section 5 of this Agreement (which
conditions shall be deemed to have been satisfied or waived upon the Seller's
receipt of the Purchase Consideration), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds and all of the Seller's right, title and
interest in and to the Closing Date Deposit. The Mortgage Loan Schedule, as it
may be amended, shall conform to the requirements set forth in this Agreement
and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected 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
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
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instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered will be held
by the Trustee in escrow for the benefit of the Seller at all times prior to the
Closing Date. The Mortgage File with respect to each Mortgage Loan that is a
Trust Mortgage Loan shall contain the following documents:
(i) the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
LaSalle Bank National Association, as trustee for the registered holders
of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, or in blank;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above) in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, or
in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
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(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement assignment,
in form suitable for filing in favor of LaSalle Bank National Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, as
assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) an original or copy of any intercreditor agreement relating
to permitted debt of the Mortgagor and any intercreditor agreement
relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit, in each case relating
to the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing
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Statement assignment shall reflect that the file copy thereof should be returned
to the Trustee following filing; provided, that in those instances where the
public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Recording/Filing Agent shall obtain
therefrom a certified copy of the recorded original. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans, (b) are
reasonably necessary for the ongoing administration and/or servicing of such
Mortgage Loans by the Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the Master Servicer (or, at the direction of the Master Servicer, to the
appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due diligence analyses, credit committee briefs or
memoranda or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for each Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to
the Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
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(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and the
Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Seller is a party or by which the Seller is
bound, which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
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(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by the
Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
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not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Collection Account any Substitution Shortfall Amount in
connection therewith; provided, however, that, unless the Document Defect or
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, the Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan (which, for purposes of such
repurchase or substitution, shall include an REO Loan)); and provided, further,
that with respect to such additional 90-day period, the Seller shall have
delivered an officer's certificate to the Trustee setting forth the reason(s)
such Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to the Specially
Designated Mortgage Loan Documents) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters
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immediately preceding such repurchase or substitution, and (2) the weighted
average loan to-value ratio for the remaining Crossed Loans, determined at the
time of repurchase or substitution, based upon an appraisal obtained by the
Special Servicer at the expense of the Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan determined at the time of repurchase or substitution,
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller; provided, that if such debt service coverage and loan-to-value criteria
are satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Trustee, at the expense
of the Seller, of an Opinion of Counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (ii) the
consent of the Controlling Class Representative (if one is then acting), which
consent shall not be unreasonably withheld or delayed. In the event that one or
more of such other 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 Document Defect or Breach exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Loan Group. All
documentation relating to the termination of the cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at the expense
of the Seller and, where required, with the consent of the related Mortgagor.
For a period of two years from the Closing Date, so long as there remains any
Mortgage File relating to a Mortgage Loan as to which there is any uncured
Document Defect or Breach known to the Seller, the Seller shall provide, once
every ninety days, the officer's certificate to the Trustee described above as
to the reason(s) such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; provided, however, that, without limiting
the effect of the foregoing provisions of this Section 3(c), if such Document
Defect or Breach shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein
(subject to the last proviso in the sole sentence of the preceding paragraph),
the Seller shall in all cases on or prior to the second anniversary of the
Closing Date either cause such Document Defect or Breach to be cured or
repurchase or substitute for the affected Mortgage Loan. The delivery of a
commitment to issue a policy of lender's title insurance as described in
representation 8 set forth on Schedule I hereto in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
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If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection with such release, (ii) the remaining Mortgaged Property(ies) satisfy
the requirements, if any, set forth in the Mortgage Loan documents and the
Seller provides an opinion of counsel to the effect that such release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code
or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the Master Servicer or the Special
Servicer from the related Mortgagor and not a repurchase or substitution of the
related Mortgage Loan. Following the Seller's remittance of funds in payment of
such costs and expenses, the Seller shall be deemed to have cured the breach of
representation 30 in all respects. To the extent any fees or expenses that are
the subject of a cure by the Seller are subsequently obtained from the related
Mortgagor,
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the cure payment made by the Seller shall be returned to the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller, acting in
its sole discretion, may effect a repurchase or substitution (in accordance with
the provisions of this Section 3(c) setting forth the manner in which a Mortgage
Loan may be repurchased or substituted) of a Mortgage Loan, as to which
representation 30 set forth on Schedule I has been breached, in lieu of paying
the costs and expenses that were the subject of the breach of representation 30
set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the Collection Account, and, if
applicable, the delivery of the Mortgage File(s) and the Servicing File(s) for
the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively, (i) the Trustee shall be required to execute and
deliver such endorsements and assignments as are provided to it by the Master
Servicer or the Seller, in each case without recourse, representation or
warranty, as shall be necessary to vest in the Seller the legal and beneficial
ownership of each repurchased Mortgage Loan or substituted Mortgage Loan, as
applicable, (ii) the Trustee, the Custodian, the Master Servicer and the Special
Servicer shall each tender to the Seller, upon delivery to each of them of a
receipt executed by the Seller, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by it, and (iii) the Master
Servicer and the Special Servicer shall release to the Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or deleted
Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
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SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other instrument to which
the Purchaser is a party or by which the Purchaser is bound, which default might
have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
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(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Austin LLP on the Closing
Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
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(f) One or more letters from the independent accounting firms of
Ernst & Young LLP and PriceWaterhouseCoopers LLP, in form satisfactory to the
Purchaser and relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus (as defined in Section 6(d) of this
Agreement) and Prospectus Supplement (as defined in Section 6(d) of this
Agreement), respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of March 22, 2006,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., Eurohypo AG, New York
Branch, the Purchaser, the Underwriters and the Initial Purchasers. Both parties
agree to use their best reasonable efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Agreement to Appointment of Master Servicer, dated as of
March 30, 2006, between the Seller and Wachovia, duly executed by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his
attention that would lead him to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage
Loans or omitted or omit to state therein a material fact necessary in order to
make the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
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carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage
Loans" (insofar as the information contained in Annex A-1 relates to the
Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Free Writing
Prospectus, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex B to the Free Writing
Prospectus entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Free Writing Prospectus, entitled
"Structural and Collateral Term Sheet" (insofar as the information contained in
Annex C relates to the Mortgage Loans sold by the Seller hereunder), the
diskette which accompanies the Free Writing Prospectus (insofar as such diskette
is consistent with Annex X-0, Xxxxx X-0 and/or Annex B), and the following
sections of the Free Writing Prospectus (only to the extent that any such
information relates to the Seller or the Mortgage Loans sold by the Seller
hereunder and exclusive of any statements in such sections that purport to
describe the servicing and administration provisions of the Pooling and
Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors" and
"Description of the Mortgage Pool".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Prospectus Supplement (only to the extent that any
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such information relates to the Seller or the Mortgage Loans sold by the Seller
hereunder and exclusive of any statements in such sections that purport to
describe the servicing and administration provisions of the Pooling and
Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Prospectus Supplement--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Prospectus Supplement--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors" and
"Description of the Mortgage Pool".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated March
14, 2006, and relating to the Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum
dated March 22, 2006, and relating to the Private Certificates;
"Prospectus" means the prospectus dated March 22, 2006.
"Prospectus Supplement" means the prospectus supplement dated March
22, 2006, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means March 22, 2006, at 2:45PM.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws of the Seller, and (iii) a certificate of good standing
of the Seller issued by the State of California not earlier than thirty (30)
days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
corporate and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing
16
Date, and in the memorandum of understanding to which the Seller and the
Purchaser (or an affiliate thereof) are parties with respect to the transactions
contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 of this Agreement
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser and the Trustee any disclosure
information relating to any event, specifically relating to the Seller,
reasonably determined in good faith by the Purchaser as required to be reported
on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting reasonably
appropriate for inclusion in such form) insofar as such disclosure is required
under Items 1117 and 1119 of Regulation AB and Item 1.03 to From 8-K. The Seller
shall use reasonable efforts to deliver proposed disclosure language relating to
any event, specifically
17
relating to the Seller, described under Items 1117 and 1119 of Regulation AB and
Item 1.03 to From 8-K to the Trustee and the Purchaser as soon as reasonably
practicable after the Seller becomes aware of such event and in no event more
than two business days following the occurrence of such event if such event is
reportable under Item 1.03 to Form 8-K. The obligation of the Seller to provide
the above referenced disclosure materials will terminate upon notice or other
written confirmation from the Purchaser or the Trustee that the Trustee has
filed a Form 15 with respect to the Trust Fund as to that fiscal year in
accordance with Section 8.16 of the Pooling and Servicing Agreement or the
reporting requirements with respect to the Trust under the Securities Exchange
Act of 1934 have otherwise automatically suspended. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
9 will be used in the preparation of reports meeting the reporting requirements
of the Trust under Section 13(a) and/or Section 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
by facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN
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ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO EACH IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
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SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP and PriceWaterhouseCoopers LLP in making available all
information and taking all steps reasonably necessary to permit such accountants
to deliver the letters required by the Underwriting Agreement and the
Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
COUNTRYWIDE COMMERCIAL REAL ESTATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Address for Notices:
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx or Director, CMBS
Securitization
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
COUNTRYWIDE MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in March 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
March 2006, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or encumbrances
that are pari passu with the lien of such Mortgage, in any event subject,
however, to the following (collectively, the "Permitted Encumbrances"): (a) the
lien for current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding upon
the title insurer); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default beyond applicable notice and grace periods. No person other
than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
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amendments or supplements thereto included in the related Mortgage File) has not
been impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part. With respect to each Mortgage Loan, since the later
of (a) March 6, 2006 and (b) the closing date of such Mortgage Loan, the Seller
has not executed any written instrument that (i) impaired, satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified or altered
any material term of such Mortgage Loan, (iii) released the Mortgaged Property
or any material portion thereof from the lien of the related Mortgage, or (iv)
released the related Mortgagor from its obligations under such Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding sentence does not
relate to any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if
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it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee as sole insured without the consent of or notice to
the insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen meeting ASTM standards or an update of a previously conducted
environmental site assessment (which update may have been performed pursuant to
a database update), was performed by an independent third-party environmental
consultant (licensed to the extent required by applicable
I-4
state law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "Environmental Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve (12) months
prior to the date hereof, (c) a copy of each such Environmental Report has been
delivered to the Purchaser, and (d) either: (i) no such Environmental Report, if
any, reveals that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a deductible or the
deductible amount is held in escrow and all premiums have been paid in full.
I-5
Each Mortgagor represents and warrants in the related Mortgage Loan documents
that except as set forth in certain environmental reports and to its knowledge
it has not used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials. The related Mortgagor (or affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
out-of-pocket expenses and claims of any kind whatsoever (including attorneys'
fees and costs) paid, incurred or suffered by or asserted against, any such
party resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing
I-6
a Mortgage Loan is the subject of a business interruption or rent loss insurance
policy providing coverage for at least twelve (12) months (or a specified dollar
amount which is reasonably estimated to cover no less than twelve (12) months of
rental income), unless such Mortgaged Property constitutes a manufactured
housing community. If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as a special flood hazard area (Zone A or Zone V), and flood
insurance was available, a flood insurance policy is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of: (1) the full insurable value of the related Mortgaged Property or
(2) the maximum amount of insurance available. Each Mortgaged Property located
in California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is
a debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or
I-8
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or
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(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
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interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially
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reasonable originator of similar mortgage loans in the jurisdiction where the
related Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Crossed Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price in connection
therewith; and provided, further, that certain Crossed Groups or individual
Mortgage Loans secured by multiple parcels may permit the related Mortgagor to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan documents provide that the
related Mortgagor is responsible for the payment of all reasonable costs and
expenses associated with defeasance incurred by the related mortgagee, including
Rating Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan documents provide that the related Mortgagor is responsible for
all reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
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31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
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36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted for filing and/or recording
to a title company pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee. Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing or
recording of UCC Financing Statements are required in order to effect such
perfection.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
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41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
(identified on Annex D) that consists of a leasehold estate that is not a
material ground lease, which ground lease is not the subject of representation
18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly
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operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
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ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
REP. 2 OWNERSHIP OF MORTGAGE LOANS
With respect to Loan Nos. 7, 14, 96, and 000, Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxxx Main Center - Rockford and Walgreens Tomball, the related
borrower has given a tenant an option to purchase or a right of first refusal
with respect to all or a portion of the related mortgaged property.
With respect to Loan Xx. 000, 00000 Xxxxxxx Xxx, there is a deed
restriction that runs with the related mortgaged property for the benefit of the
Housing Authority of Los Angeles, which gives the Housing Authority a right of
first refusal to lease (i) three units at fair market value for low income
tenants, and (ii) four-five units for low or moderate income tenants. There are
currently no units at the property that fall under this right.
With respect to Loan No. 117, Summit Marketplace, the original
developer of the related mortgaged property entered into certain development
agreements. The obligations under such agreements run with the related mortgaged
property and impose certain repair obligations on the owner of the property.
REP. 6 MORTGAGE STATUS; WAIVERS AND MODIFICATIONS
With respect to Loan 10, Prince Georges Center II, although no
release has yet occurred, the property intended to be collateral was part of a
larger parcel whose subdivision had not yet been filed at the time of Closing.
The definition of the "Property" was therefore revised to include the additional
portion of the unsubdivided parcel, and the Loan Agreement provides for release
of all of the parcel other than that initially intended to constitute the
collateral upon filing of the subdivision (and satisfaction of other
requirements).
REP. 7 CONDITION OF PROPERTY; CONDEMNATION
With respect to Loan 90, Country Lakes Apartments, Unit numbers
47-52 were damaged by fire in November of 2005. Insurance coverage exists and
said coverage is sufficient to affect the necessary repairs and maintenance. In
addition, Seller has escrowed $271,000 with Escrow Agent pursuant to Escrow
Agreement. Said funds shall be transferred to Lender pursuant to the Loan
Agreement in the event that restoration is not complete within six months from
the date of closing.
REP. 8 TITLE INSURANCE
With respect to Loan 000, Xxxxxxxx Xxxxx, the title policy does not
contain a same as survey endorsement.
REP. 10 MORTGAGE PROVISIONS
All of the exceptions made to representation number 14 regarding
terrorism insurance are incorporated herein by reference as if made herein.
REP. 12 ENVIRONMENTAL CONDITIONS
With respect to Loan 00, Xxxxxxxx Xxxx Xxxxx Xxxxx, in the Mortgage
Loan documents, Mortgagor represents, warrants and covenants, as to itself and
the Mortgaged Property: (a) other than as disclosed to the Lender in the
environmental report delivered to Lender in connection with the Mortgage Loan,
there are no hazardous substances or underground storage tanks in, on, or under
the Mortgaged Property, except those that are both (i) in compliance with all
environmental laws and with permits issued pursuant thereto and (ii) which do
not require remediation; (b) to Mortgagor's knowledge there are no past, present
or threatened releases of hazardous substances in, on, under, from or affecting
the Mortgaged Property which have not been fully remediated in accordance with
environmental laws; (c) to Mortgagor's knowledge there is no release or threat
of any release of hazardous substances which has or is migrating to the
Mortgaged Property; (d) to Mortgagor's knowledge there is no past or present
non-compliance with environmental laws, or with permits issued pursuant thereto,
in connection with the Mortgaged Property which has not been fully remediated in
accordance with environmental laws; (e) the Mortgagor does not know of, and has
not received, any written notice (or with respect to governmental authorities
any oral notice) from any person (including governmental authority) relating to
hazardous substances at or related to the property or the remediation thereof,
of possible liability of any person pursuant to any environmental law arising
out of or related to the property, other environmental conditions in connection
with the Mortgaged Property, or any actually or potential administrative or
judicial proceedings in connection with any of the foregoing; and (f) the
Mortgagor has truthfully and fully provided to the Lender, in writing, any and
all information relating to conditions in, on, under or from the Mortgaged
Property that is known to the Mortgagor and that is contained in files and
records of the Mortgagor, including, without limitation, any reports relating to
hazardous substances in, on, under or from the Mortgaged Property and/or to the
environmental condition of the Mortgaged Property.
The Mortgagor and the environmental indemnitor are not obligated
under the Mortgage Loan documents to indemnify the Lender or any other
indemnified party to the extent that such losses are caused by Lender or any
other indemnified party.
With respect to Loan 000, Xxxxxxxxxx Xxxxx, with respect to the
indemnity, specific reference to "injuries" is not included.
With respect to Loan 0, Xxxxxxxx Xxxxxxxxxx, Xxxxxxxx is required to
implement an operations and maintenance plan for asbestos.
REP. 14 INSURANCE
With respect to various Countrywide loans (other than any exceptions
herein to the contrary), for so long as the Terrorism Risk Insurance Act of 2002
("TRIA") is in effect (including any extensions), the lender shall accept
terrorism insurance which covers against "covered acts" as defined by TRIA. In
addition, the Mortgagor may only be required to maintain
insurance covering for loss resulting from perils of terrorism and acts of
terrorism to the extent such coverage is available at commercially reasonable
rates.
With respect to Loan 96 and 124, North Main Center and Northridge
Plaza, Borrower is obligated to obtain insurance to cover perils of terrorism
and acts of terrorism so long as such coverage is commercially reasonably
available, which means in this context that the coverage for terrorism and acts
of terrorism required is available at an annual premium not exceeding 200% of
the aggregate annual premiums for all other insurance coverages to be maintained
by Borrower pursuant to the terms of the Loan Agreement.
With respect to Loan 00, Xxxxxxxx Xxxx Xxxxx Xxxxx, if and to the
extent restoration proceeds are not required to be made available to Mortgagor
under the Mortgage Documents, Lender is only entitled to apply such restoration
proceeds to the full or partial payment or prepayment of amounts due under the
Mortgage Loan.
With respect to Loan 11, Inglewood Park, the Mortgagor is required
to maintain comprehensive general liability insurance, including contractual
injury, bodily injury, broad form death and property damage liability against
any and all claims, including all legal liability to the extent insurable
imposed upon Mortgagor and all court costs and attorneys' fees and expenses,
arising out of or connected with the possession, use, leasing, operation,
maintenance or condition of the Mortgaged Property with a combined limit of not
less than $2,000,000 in the aggregate and $1,000,000 per occurrence, plus
$10,000,000 umbrella coverage, plus motor vehicle liability coverage for all
owned and non-owned vehicles (including, without limitation, rented and leased
vehicles) containing minimum limits per occurrence, including umbrella coverage,
of $1,000,000.
With respect to Loan 116, Xxxxx Apartments, at all times during the
term of the Loan, Trustor shall maintain, at its sole cost and expense, for the
mutual benefit of Trustor and Beneficiary, the following policies of insurance:
(a) Insurance against any peril included within the classification "All Risks of
Physical Loss" with extended coverage in amounts at all times sufficient to
prevent Trustor from becoming a co-insurer within the terms of the applicable
policies, but in any event such insurance shall be maintained in an amount equal
to the greater of (i) the full insurable value of the Property, or (ii) the
outstanding principal balance of the Loan (and in all cases where any of the
Improvements or the use of the Property shall at any time constitute legal
non-conforming structures or uses under applicable laws, the policy referred to
in this Section 5.1(a) must include "Ordinance and Law Coverage" in form and
amount of coverage reasonably acceptable to Beneficiary); (b) comprehensive
general liability insurance with a combined limit of not less than $2,000,000 in
the aggregate and $1,000,000 per occurrence, plus umbrella coverage; (c)
statutory workers' compensation insurance; (d) business interruption and/or loss
of "rental value" insurance for the Property in an amount equal to twelve (12)
months estimated gross Rents attributable to the Property and based on gross
Rents for the immediately preceding year and otherwise sufficient to avoid any
co-insurance penalty; (e) If all or any portion of the Property is located
within a federally designated flood hazard zone, flood insurance in an amount
equal to the maximum allowed under the related federal flood insurance program;
and (f) such other insurance with respect to the Property against loss or damage
as requested by Beneficiary provided such insurance is of the kind for risks
from time to time customarily insured against and in such amounts as are
generally required by institutional lenders
for properties comparable to the Property or which Beneficiary may deem
necessary in its reasonable discretion.
With respect to Loan 115, Walgreens 24th & Florin, pursuant to
Section 7.9 of the Loan Agreement, the tenant, Walgreen's may self insure in
accordance with its Lease terms, so long as (i) Walgreen's investment grade
credit rating, as issued by S&P, is "BBB+" or better, and (ii) Walgreen's shall
not be in default under the Walgreen's Lease.
REP. 17 LOCAL LAW COMPLIANCE
With respect to Loan 11, Inglewood Park, one of the parcels
comprising the Mortgaged Property is legal non-conforming as a result of having
eight (8) parking spaces less than required by the applicable zoning code.
According to the zoning consultant's report, there is ample room to accommodate
eight (8) additional parking spaces at the parcel.
REP. 18 MATERIAL LEASEHOLD ESTATE
With respect to Loan 118, Alii Sunset, the Ground Lease parcel is
only 1 of the 3 parcels which comprise the Property. The Ground Lessor's
Estoppel Certificate was not obtained and as a result, the Ground Lessor did not
confirm clause (iv), that is that the Ground Lease is in full force and effect
and no material default exists under the Ground Lease. The Ground Lease is
silent as to clause (viii) and does not state that it may not be amended or
modified without the prior written consent of the mortgagee under the Mortgage
Loan and any such action without such consent is not binding on such mortgagee.
The other items listed above are true according to the Ground Lease.
REP. 22 LEGAL PROCEEDINGS
With respect to Loan 00, Xxxxxxxx Xxxx-Xxxxx Xxxxx, according to the
litigation schedule provided with the Acquisition and Contribution Agreement
between borrower and seller:
Mortgagor's predecessor in interest was Colonial Realty Limited
Partnership, defendant in the case Xxxxx Xxxx v. Colonial Xxxxx Place Mall,
Colonial Realty Limited Partnership, colonial Properties Trust, Civil Action No.
CE 00-0000-000 in the Superior Court of Xxxxx County, State of Georgia.
Plaintiff was carjacked in the parking lot of the shopping mall on August 2,
2001 and alleges, among other things, negligence on the part of defendant in
failing to provide adequate security. The case has been inactive since December
of 2004.
There is also pending litigation with Mortgagor's predecessor in
interest as defendant--a slip and fall that occurred on March 6, 2003.
Depositions have been taken, but no pre-trial date has been set.
REP. 23 OTHER MORTGAGE LIENS
With respect to Loan 00, Xxxx Xxxxxx Xxxxx, the borrower is
permitted by the mortgage loan documents to obtain additional debt secured by a
subordinate lien on the property, provided that the requirements of the related
loan agreement have been satisfied.
REP. 26 LICENSES AND PERMITS
With respect to Loan 52, Da Vinci Court Apartments, the related
borrower is currently operating the property pursuant to a Temporary Certificate
of Occupancy. Pursuant to the Post Closing Deliveries Letter Agreement, Borrower
is required to obtain a permanent Certificate of Occupancy no later than May 31,
2006. Violation of the terms of the Post Closing Deliveries Letter Agreement,
was added to the note as a full recourse event.
Rep. 34 DUE-ON-SALE
With respect to Loan 00, Xxxxxxxx Xxxx-Xxxxx Xxxxx, Xxxxxxxx will
not allow any Transfer to occur other than the following Transfers (in each case
provided that no Event of Default then exists) (each, a "Permitted Transfer"):
(i) Permitted Encumbrances (as defined in the Loan Agreement);
(ii) Leases which are not Material Leases, and Material Leases which have
been approved or deemed approved by Lender in accordance with Section 5.7;
(iii) Transfers of direct or indirect Equity Interests in Borrower which
in the aggregate (excluding Permitted Transfers pursuant to Sections 6.1(a) and
(b) and Section 6.1(d) through (h)) during the term of the Loan (i) do not
exceed forty-nine percent (49%) of the total direct or indirect legal or
beneficial ownership interests in Borrower, (ii) do not result in any
shareholder's, partner's, member's or other Person's interest in Borrower
exceeding forty-nine percent (49%) of the total direct or indirect legal or
beneficial ownership interests in Borrower if such shareholder's, partner's,
member's or other person's interest did not exceed forty-nine percent (49%)
before said Transfer and (iii) do not result in a change in Control of Borrower;
(iv) Transfers of direct or indirect Equity Interest in Borrower which in
the aggregate (excluding Permitted Transfers pursuant to Sections 6.1(a), (b),
and (c) and Section 6.1(e) through (h)) during the term of the Loan (i) do
exceed forty-nine percent (49%) of the total direct or indirect legal or
beneficial ownership interests in Borrower, (ii) do result in any shareholder's,
partner's, member's or other Person's interest in Borrower exceeding forty-nine
percent (49%) of the total direct or indirect legal or beneficial ownership
interests in Borrower if such shareholder's partner's, member's or other
person's interest did not exceed forty-nine percent (49%) before said Transfer,
(iii) do result in a change of Control of the Borrower, or (iv) do result in a
transfer of all or substantially all of the Property, in each case to another
party (the "Transferee"), provided that in each case with respect to clauses
(i), (ii), (iii), and (iv), (A) Borrower shall pay to Lender a transfer fee in
the amount of one quarter of one percent (.25%) of the then outstanding
Principal Indebtedness, (B) Borrower shall obtain the prior written consent of
Lender, not to be unreasonably withheld, (C) the identity, experience, financial
condition, creditworthiness, single purpose nature and bankruptcy remoteness of
the Borrower, Transferee, and the replacement guarantors and indemnitors shall
be reasonably satisfactory to Lender, (D) Borrower, Transferee, Guarantor and
the replacement guarantors and indemnitors shall execute and deliver any and all
documentation as may be reasonably required by Lender or required by the Rating
Agencies, as the case may be, in form and substance reasonably satisfactory to
Lender or satisfactory to the Rating Agencies, as the case may be, in Lender's
reasonable discretion or the Rating Agencies' discretion, as applicable
(including assumption
documents), (E) counsel to Transferee and the replacement guarantors and
indemnitors shall deliver to Lender and the Rating Agencies opinion letters
relating to such transfer (including tax and bankruptcy opinions) in form and
substance reasonably satisfactory to Lender and satisfactory to the Rating
Agencies in Lender's reasonable discretion and the Rating Agencies' discretion,
(F) if the Property is transferred, Borrower shall deliver (or cause to be
delivered) to Lender, an endorsement to Lender's title insurance policy relating
to the change in the identity of the vestee and the execution and delivery of
the transfer documentation in form and substance reasonably acceptable to
Lender, (G) Borrower pays all reasonable expenses incurred by Lender in
connection with such Transfer, including Lender's reasonable attorneys fees and
expenses, all recording fees, and all fees payable to the applicable title
company for the delivery to Lender of the endorsement referred to in clause (F)
above, and (H) if required by Lender, after a Secondary Market Transaction,
Lender shall have received a Rating Agency Confirmation with respect to such
Transfer (with respect to any proposed Transfer of Equity Interests pursuant to
this Section 6.1(d), Lender's failure to respond to a request from Borrower for
approval within thirty (30) days of the latter of (i) such receipt of such
request and (ii) receipt of all information reasonably requested by Lender shall
be deemed Lender's approval, provided that Borrower delivers to Lender a writing
marked in bold lettering with the following: "LENDER'S RESPONSE IS REQUIRED
WITHIN 30 DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN
AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER" and the envelope containing the
writing must be marked "PRIORITY" in bold letters);
(v) Transfers of Equity Interests in any company that is publicly traded
on a nationally or internationally recognized stock exchange or has a class of
Equity Interests registered under the Securities Act of 1934, provided that such
transfer does not result in a change of Control;
(vi) Transfers of (i) direct or indirect Equity Interests in the Borrower
among the holders thereof as of the date hereof or to and among the Affiliates
of such holders, provided that any Transfer to any Affiliate does not result in
such Affiliate's Interest in Borrower exceeding forty-nine percent (49%) and
does not result in a change of Control of Borrower, (ii) indirect Equity
Interests in Borrower, pursuant to a public offering on a nationally or
internationally recognized stock exchange, provided no such Transfer results in
a change in Control of Borrower], and (iii) direct or indirect Equity Interests
in the Borrower to a Qualified Transferee (provided that immediately after such
Transfer is given effect, the Property is managed by a Qualified Manager),
provided that in each case with respect to clauses (i), (ii), and (iii), (A)
Borrower gives notice to Lender, (B) Borrower pays all reasonable expenses
incurred by Lender in connection with such Transfer, including Lender's
reasonable attorneys fees and expenses, and (C) Borrower shall execute and
deliver any and all documentation as may be reasonably required by Lender or
required by the Rating Agencies, as the case may be, in form and substance
reasonably satisfactory to Lender or satisfactory to the Rating Agencies, as the
case may be, in Lender's reasonable discretion or the Rating Agencies'
discretion, as applicable; and further provided that in each case with respect
to clauses (ii) and (iii) only, Borrower shall pay to Lender a transfer fee in
the amount of one quarter of one percent (.25%) of the then outstanding
Principal Indebtedness;
(vii) Transfers of a direct or indirect legal or beneficial ownership
interest in Borrower that occurs by devise or bequest or by operation of law
upon the death of a natural person that
was the holder of such interest to a member of the immediate family of such
interest holder or a trust or family conservatorship established for the benefit
of such immediate family member, provided that (i) Manager continues to be
responsible for the management of the Property, and such transfer shall not
result in a change of the day to day operations of the Property, (ii) Borrower
shall give Lender notice of such transfer together with copies of all
instruments effecting such transfer not less than ten (10) Business Days after
the date of such transfer, and (iii) if such transfer would result in a change
of Control of Borrower, Borrower shall have (A) obtained Lender's consent to
such transfer within thirty (30) days after such transfer, which consent shall
not be unreasonably withheld, conditioned, or delayed, and (B) if required by
Lender, if such Transfer occurs after a Secondary Market Transaction, Borrower,
at Borrower's sole cost and expense, within thirty (30) days after such
transfer, delivered (or cause to be delivered) to Lender a Rating Agency
Confirmation with respect to such Transfer and such opinion letters (including
tax and bankruptcy opinions) in form and substance satisfactory to Lender and
the Rating Agencies in their discretion, respectively, and (C) reimbursed Lender
for all reasonable expenses incurred by Lender in connection with such Transfer;
(viii) Inter vivos or testamentary Transfers of all or any portion of the
direct or indirect Equity Interest in Borrower to (i) one or more immediate
family members of the current holders of such Equity Interests (a "Current
Owner"), or (ii) a trust or other entity in which all of the beneficial interest
is held by a Current Owner or one or more immediate family members of a Current
Owner; provided, that in each case (A) such Transfers is made in connection with
a Current Owner's bona fide, good faith estate planning, (B) no change in
Control of Borrower results therefrom unless the provisions of Section 6.1(g)
have been satisfied, and (C) no such Transfer has an adverse effect on the
bankruptcy remote status of Borrower under the requirements of any Rating
Agency. As used herein, "immediate family members" shall mean the spouse,
children and grandchildren and any lineal descendants
With respect to Loan 00, Xxxxxxxxxx Xxxxxxx, Xxxxxxxx may transfer
the Mortgaged Property or more than 49% of the equity interest in mortgagor
provided (i) Mortgagor pays an assumption fee and all of lender's costs and
expenses, (ii) the replacement borrower and guarantor are acceptable to lender,
(iii) Mortgagor delivers the requested legal opinions and rating agency and
lender documentation, and (iv) a new loan policy or an endorsement to lender's
existing title insurance policy.
With respect to Loan 00, Xxxxxxx Xxx, Xxxxxx Xxxxx, Permitted
Transfers includes (provided no Event of Default then exists): (i) Permitted
Encumbrances (i.e. mortgage lien, government liens and permitted exceptions to
title policy), (ii) Material Leases (where Rent payable thereunder exceeds ten
percent (10%) of Rent payable under all Leases on the Property), (iii) Transfers
of more than 49% total direct or indirect Equity Interests in Borrower or any
direct or indirect Equity Interests that results in a change of Control or
transfers of all or substantially all of the Property pursuant to the assumption
requirements of the Mortgage Loan.
With respect to Loan 000, Xxxxxx Xxxxxxxxxxx, as agreed to in the
loan application, as amended, and as set forth in Section 4.15 of the Deed of
Trust, provided that Xxxx X. Xxxxxx or an entity benefiting Xxxx X. Xxxxxx
directly or indirectly holds at least ten percent of the beneficial ownership
interests in the Borrower and maintains control of the Borrower,
Borrower shall be permitted to transfer direct and indirect ownership interests
without Beneficiary's consent or approval. Borrower shall be permitted to
transfer the property into a tenant-in-common structure; provided that (x)
Borrower shall have obtained Lender's consent to such transfer at least thirty
(30) days prior to such transfer, which consent shall not be unreasonably
withheld; (y) Borrower and any new entities holding an ownership interest in the
Property agree to execute all such documents necessary in connection with such
transfer, including but not limited to, new loan documents, modifications to
existing loan documents, and a tenant in common agreement reasonably
satisfactory to Lender, all at Borrower's sole expense; and (z) Xxxx X. Xxxxxx
or an entity benefiting Xxxx X. Xxxxxx directly or indirectly holds at least ten
percent of the beneficial ownership interests in the property.
With respect to Loan 85, 132, 110, Junction Shoppes, 0000 Xxxxxxxxx
Xxxxxx and Norco Town & Country Business Center, the related mortgagor may
transfer the related property to a transferee, provided (i) lender approves
transferee, replacement guarantors and indemnitors, (ii) required documentation
of lender and rating agencies is executed, (iii) transferee's counsel shall
deliver opinion letters relating to any transfer, and (iv) an endorsement is
made to lender's title insurance policy.
With respect to Loan 10, Prince Georges Center II, a "Permitted
Transfer" under the Loan Agreement shall also include:
(a) Permitted Encumbrances (as defined in the Loan Agreement);
(b) Leases which are not Material Leases (as defined in the Loan
Agreement), and Material Leases which have been approved by Lender in
accordance with Section 5.7 of the Loan Agreement;
(c) Transfers of (i) more than forty-nine percent (49%) of the total
direct or indirect Equity Interests in Borrower, or any indirect or
direct Equity Interest that results in a change of Control of the
Borrower, or (ii) all or substantially all of the Property, in each
case to another party (the "Transferee"), provided that in each case
with respect to clauses (i) and (ii), (A) Borrower shall pay to Lender
a transfer fee in the amount of $25,000 in connection with the first
such Transfer and a transfer fee in the amount of one percent (1%) of
the Principal Indebtedness in connection with each subsequent
Transfer, (B) the identity, experience, financial condition,
creditworthiness, single purpose nature and bankruptcy remoteness of
the Borrower, Transferee, and the replacement guarantors and
indemnitors shall be reasonably satisfactory to Lender, (C) Borrower,
Transferee, Guarantor and the replacement guarantors and indemnitors
shall execute and deliver any and all documentation as may be
reasonably required by Lender or required by the Rating Agencies, as
the case may be, in form and substance reasonably satisfactory to
Lender or satisfactory to the Rating Agencies, as the case may be, in
Lender's reasonable discretion or the Rating Agencies' discretion, as
applicable (including assumption documents), (D) counsel to Transferee
and the replacement guarantors and indemnitors shall deliver to Lender
and the Rating Agencies opinion letters relating to such transfer
(including tax and bankruptcy opinions) in form and substance
reasonably satisfactory to Lender and satisfactory to the Rating
Agencies in Lender's reasonable discretion and the Rating Agencies'
discretion, (E) if the Property is transferred, Borrower shall deliver
(or cause to
be delivered) to Lender, an endorsement to Lender's title insurance
policy relating to the change in the identity of the vestee and the
execution and delivery of the transfer documentation in form and
substance reasonably acceptable to Lender, (F) Borrower pays all
reasonable, out-of-pocket expenses incurred by Lender in connection
with such Transfer, including Lender's reasonable attorneys fees and
expenses, all recording fees, and all fees payable to the applicable
title company for the delivery to Lender of the endorsement referred
to in clause (E) above, and (G) if required by Lender, after a
Secondary Market Transaction, Lender shall have received a Rating
Agency Confirmation with respect to such Transfer; and
(d) Transfers in the nature of a pledge by a new Single-Purpose Entity
that will directly or indirectly own 100% of the Equity Interests in
Borrower and SPE Equity Owner of its direct and/or indirect Equity
Interest in Borrower and SPE Equity Owner (but not of any direct
interest in the Property or any interest of SPE Equity Owner in
Borrower) to a Permitted Mezzanine Lender as security for a loan to
such Mezzanine Borrower provided that certain terms and conditions are
satisfied.
With respect to Loan 45, Pueblo Crossing, Borrower is entitled to
transfer ownership interest of the property to various tenants in common on the
condition it complies with Section 13.7 of the Loan Agreement.
With respect to Loan 8, CNL-Cirrus MOB Portfolio Tranche II, a
"Permitted Transfer" under the Loan Agreement shall also include:
Permitted Encumbrances (as defined in the Loan Agreement);
Leases which are not Material Leases (as defined in the Loan
Agreement), and Material Leases which have been approved by Lender in accordance
with Section 5.7 of the Loan Agreement;
Transfers of (i) direct or indirect Equity Interests in Borrower, or
any indirect or direct Equity Interest that results in a change of Control of
the Borrower, or (ii) all or substantially all of the Property, in each case to
another party (the "Transferee"), provided that in each case with respect to
clauses (i) and (ii), (A) Borrower shall pay to Lender a transfer fee in the
amount of one quarter of one percent (0.25%) of the Principal Indebtedness, (B)
either (x) the Transferee is a Qualified Transferee or (y) the identity,
experience, financial condition, creditworthiness, single purpose nature and
bankruptcy remoteness of the Borrower, Transferee, and the replacement
guarantors and indemnitors shall be reasonably satisfactory to Lender, (C)
Borrower, Transferee, Guarantor and the replacement guarantors and indemnitors
shall execute and deliver any and all documentation as may be reasonably
required by Lender or required by the Rating Agencies, as the case may be, in
form and substance reasonably satisfactory to Lender or satisfactory to the
Rating Agencies, as the case may be, in Lender's reasonable discretion or the
Rating Agencies' discretion, as applicable (including assumption documents), (D)
counsel to Transferee and the replacement guarantors and indemnitors shall
deliver to Lender and the Rating Agencies opinion letters relating to such
transfer (including tax and bankruptcy opinions) in form and substance
reasonably satisfactory to Lender and satisfactory to the Rating Agencies in
Lender's reasonable discretion and the Rating Agencies'
discretion , (E) if the Property is transferred, Borrower shall deliver (or
cause to be delivered) to Lender, an endorsement to Lender's title insurance
policy relating to the change in the identity of the vestee and the execution
and delivery of the transfer documentation in form and substance reasonably
acceptable to Lender, (F) Borrower pays all reasonable expenses incurred by
Lender in connection with such Transfer, including Lender's reasonable attorneys
fees and expenses, all recording fees, and all fees payable to the applicable
title company for the delivery to Lender of the endorsement referred to in
clause (E) above, and (G) if required by Lender, after a Secondary Market
Transaction, Lender shall have received a Rating Agency Confirmation with
respect to such Transfer.
With respect to Loan 00, Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx, Permitted
Transfer includes (provided no Event of Default then exists); (i) Permitted
Encumbrances (i.e. mortgage lien, government liens and permitted exceptions to
title policy), (ii) Material Leases (where Rent payable thereunder exceeds ten
percent (10%) of Rent payable under all Leases on the Property), (iii) Transfers
of more than 49% total direct or indirect Equity Interests in Borrower or any
direct or indirect Equity Interests that results in a change of Control or
transfers of all or substantially all of the Property pursuant to the assumption
requirements of the Mortgage Loan.
With respect to Loan 45, Pueblo Crossing, Borrower is entitled to
transfer to tenants in common on the condition it complies with Section 13.7 of
the Loan Agreement.
With respect to all of Countrywide's loans in addition to the above
stated exceptions, the Property may be transferred without the written consent
of the Lender in sales of the entire Property to another party (the "Transferee
Borrower"), provided that prior to such sale the following conditions, among
others, are met: (a) Borrower may be required to pay to lender a transfer fee,
(b) the identity, experience, financial condition, creditworthiness, single
purpose nature and bankruptcy remoteness of the Transferee Borrower and the
replacement guarantors and indemnitors shall be reasonably satisfactory to
Lender, (c) Borrower, Transferee Borrower, Guarantor and the replacement
guarantors and indemnitors shall execute and deliver any and all documentation
as may be reasonably required by Lender, in form and substance reasonably
satisfactory to Lender in Lender's reasonable discretion (including, without
limitation, assumption documents), (d) counsel to Transferee Borrower and the
replacement guarantors and indemnitors shall deliver to Lender opinion letters
relating to such transfer (including, without limitation, tax, bankruptcy and
REMIC opinions) in form and substance reasonably satisfactory to Lender in
Lender's reasonable discretion, and (e) Borrower pays all reasonable expenses
incurred by Lender in connection with such transfer, including, without
limitation, Lender's reasonable attorneys fees and expenses, all recording fees,
and all fees payable to the Title Company for the delivery to Lender of the
endorsement referred to in clause (e) above.
In addition Countrywide's loan documents generally provide that in
determining whether the transfer of equity interests in Borrower is a permitted
transfer not requiring Lender's prior consent, such determination is made by
looking to transfers of "direct or indirect", "legal or beneficial equity
interests" (rather than solely a direct equity transfer in Borrower resulting in
a change of control under this Representation) and limits such transfers to an
aggregate 49% interest that does not result in a change of control of Borrower.
Also, the Countrywide loan documents permit transfers of non-material leases or
material leases that are approved by lender.
The following loans permit future mezzanine debt:
(i) Prince Georges Center II, (ii) Inglewood Park, (iii) Colonial
Mall-Xxxxx Place, (iv) Pueblo Crossing, (v) International Promenade, (vi) 000
Xxxx Xxxxxxxx Xxx, (vii) Cambridge Quail, (viii) 000 Xxxx Xxxxxxxx Xxx and (ix)
Santee Galleria.
The following loans have existing mezzanine debt:
Xxxxxxxx Distribution, in the amount of $5,778,140
With respect to Loans 15 and 13, Xxxxxxxx Center and 000 Xxxxxxx
Xxxxx & Xxxxxxxxx Xxxxx, there is a short term (90 day) mezzanine loan from
Countrywide (in the amounts of $5,679,500 and $6,183,107, respectively) to the
sole member of Borrower which is secured by 100% of the sole member's equity
interest in Borrower.
REP. 35 SINGLE PURPOSE ENTITY
With respect to Loan 00, Xxxxxxxxxx Xxxxxxx, Xxxxxxxx developed and
owned 10 townhomes adjacent to the Mortgaged Property that were conveyed to a
3rd party affiliate the day of closing. A nonrecourse carveout was added for any
loss or damage suffered due to Borrower's ownership of the townhomes.
With respect to Loan 94, Times Square Retail Center, pursuant to
Borrower's execution of the Loan Agreement, Borrower is a single purpose entity.
However, due to the loan amount, SPE provisions in Borrower's organizational
documents were waived.
REP. 37 TAX PARCELS
With respect to Loan 102, Xxxxx Office, application has been made
for creation of a separate tax lot to be effective for the next tax year.
With respect to Loan 000, Xxxx Xxxxxx Xxxxxxx, the Property is
comprised of one or more parcels which as of origination date of the loan were
not recognized by the taxing authority as separate tax lots from property owned
by adjacent property owner(s). Pursuant to the Loan Agreement, Borrower is
required to (a) apply to the appropriate taxing authority (and undertake
whatever additional actions may be required by such taxing authority) so that
separate tax parcel identification number(s) may be issued for the parcel(s)
comprising the Property and (b) submit written evidence of same to Lender.
REP. 43 RECOURSE
With respect to Loan 18, Colonial Mall Xxxxx Place, Loan shall be
recourse to the extent of any losses incurred by Lender arising out of or in
connection with:
(i) fraud, intentional misrepresentation, or willful misconduct by
Borrower, or Guarantor in connection with the Loan;
(ii) the material breach of any material representation, warranty,
covenant or indemnification provision in any Loan Document concerning
environmental laws or hazardous
substances, and any indemnification of Lender with respect thereto contained in
any Loan Document;
(iii) any act of material physical waste of the Property or any material
portion thereof, committed or permitted by Borrower or Guarantor through its
gross negligence or willful misconduct, or, during the continuance of any Event
of Default, the removal or disposal of any portion of the Property (except as
otherwise permitted by the Loan Documents);
(iv) the misapplication (in contravention of the Loan Documents),
misappropriation, or conversion by Borrower, Guarantor, or any affiliate of the
foregoing of (A) any insurance proceeds paid by reason of any casualty, (B) any
condemnation proceeds received in connection with any taking or (C) any rents or
security deposits;
(v) any gross negligence or criminal act by Borrower or Guarantor that
results in forfeiture, seizure, or loss of the Property or any material portion
thereof;
(vi) any breach of Section 4.23 of the Loan Agreement; or
(vii) an Event of Default occurs under Section 8.1(d) of the Loan
Agreement.
Loan shall be fully recourse to Borrower in the event of:
Borrower files a voluntary petition, or the Property or any portion thereof
becomes an asset in a voluntary bankruptcy or similar proceeding, under the U.S.
Bankruptcy Code or any other federal or state bankruptcy or insolvency law, or
(2) Guarantor or any Affiliate, officer, director, or representative of Borrower
or Guarantor consents to or colludes in the filing of, or Borrower consents to
or colludes in the filing of, an involuntary petition under the U.S. Bankruptcy
Code or any other federal or state bankruptcy or insolvency law against
Borrower.
Except to the extent that environmental Losses are caused by Lender
or any other Indemnified Party, the environmental indemnitor and Borrower
indemnifies Lender and other indemnified parties from losses directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) any past, present, or threatened Release of Hazardous Substances
in, on, above, under, from or affecting the Property or any remediation thereof;
(b) the imposition, recording or filing or the threatened imposition, recording
or filing of any Environmental Lien encumbering the Property; (c) any
misrepresentation or inaccuracy in any representation or warranty concerning
Hazardous Substances; and (d) any breach of the Environmental Indemnity
Agreement or the representations and covenants in the Loan Agreement.
With respect to Loan 00, Xxxxxxxxxxxx Xxxx Portfolio, the recourse
provisions in the Mortgage Loan documents with respect to waste and
misappropriation of tenant security deposits, rent, insurance proceeds and
condemnation awards provide that any such waste or misappropriation must be
intentional in order for recourse liability to apply.
With respect to Loan 129, Beloit Mall, the Guarantors are guarantors
as to payment of the $ 900,000.00 pursuant to an Additional Guaranty which will
be released upon
receipt of an estoppel in form acceptable to lender from Asia Buffet as long as
these has been no event of default under the loan documents.
REP. 45 FEE SIMPLE INTEREST
With respect to Loan 118, Alii Sunset, see representation 18 above
for 1 out of the 3 parcels compromising the Property. The Borrower has a fee
simple ownership of the remaining 2 parcels.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE
WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
None.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
COUNTRYWIDE
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE
------ ------------- ---------- ----
6 Lakewood Apartments CRF Multifamily
7 Lightstone Portfolio CRF Retail
7.01 00xx Xxxxxx Plaza CRF Retail
7.02 Monroe Plaza CRF Retail
7.03 New Smyrna Beach Shopping Center CRF Retail
7.04 Mountainville Shopping Center CRF Retail
7.05 Martintown Plaza CRF Retail
7.06 Birney Mall CRF Retail
7.07 Shillington Plaza CRF Retail
7.08 Cloud Springs Plaza CRF Retail
7.09 Home Depot CRF Retail
7.10 Dunmore Plaza CRF Retail
7.11 Kings Fairground Plaza CRF Retail
8 CNL-Cirrus MOB Portfolio II CRF Various
8.01 Ballas Medical Xxxxx XXX Xxxxxx
0.00 Xxxxx Xxxxx Hospital CRF Other
8.03 Xxxxxx Medical Plaza CRF Office
8.04 Baylor Health Center at Lake Ridge CRF Office
8.05 Midlothian Healthcare Center CRF Office
8.06 XxXxx Health Center CRF Xxxxxx
00 Xxxxxx Xxxxxxx Xxxxxx XX XXX Xxxxxx
00 Xxxxxxxxx Xxxx CRF Various
11.01 Inglewood 2 CRF Office
11.02 Inglewood 1 CRF Office
11.03 Inglewood 6 CRF Industrial
11.04 Inglewood 5 CRF Industrial
11.05 Inglewood 4 CRF Industrial
11.06 Inglewood 7 CRF Industrial
11.07 Inglewood 3 CRF Industrial
00 Xxxxxxx Xxxxxx & Xxxxxxxxx Xxxxx CRF Office
13.01 Ashford Center CRF Office
13.02 Peachtree Ridge CRF Xxxxxx
00 Xxxxxxx Xxxxxx XXX Xxxxxx
00 Xxxxxxxx Xxxxxx CRF Office
18 Colonial Mall Xxxxx Place CRF Retail
19 Lullwater at Bass Apartments CRF Multifamily
20 U Stor It Self Storage Portfolio CRF Self Storage
20.01 0000 Xxxx 00xx Xxxxxx CRF Self Storage
20.02 0000 Xxxx 000xx Xxxxxx CRF Self Storage
20.03 0000 Xxxx 00xx Xxxxxx CRF Self Storage
20.04 1798 and 0000 Xxxxx Xxxxxxx XXX Self Storage
00 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XXX Industrial
24.01 Breckenridge I-III CRF Industrial
24.02 Breckenridge IV-V CRF Industrial
26 Guardian Self Storage CRF Self Storage
26.01 Storage I (CA) CRF Self Storage
26.02 Self Storage HR CRF Self Storage
26.03 Self Storage WD CRF Self Storage
26.04 Self Storage III (SM) CRF Self Storage
27 Xxxxxxxx Distribution CRF Industrial
27.01 Xxxxxxxx Distribution 1 CRF Industrial
27.02 Xxxxxxxx Distribution 0 XXX Xxxxxxxxxx
00 Xxxxxxxxx Xxxxxxxx XXX Multifamily
34 Himmarshee Landing CRF Office
36 Xxxxxxxxx Square CRF Retail
37 Hilton Salt Lake City Airport CRF Hospitality
39 FNBA - Fountainhead Xxxxxxxx XXX Xxxxxx
00 Xxxxxxxx Xxxxxxxxxx Ground Lease Portfolio CRF Other
42.01 Buckingham Heights Business Park CRF Other
42.02 Watt Leed Distribution Facility CRF Other
42.03 Xxxxxx Xxxxxx CRF Other
42.04 XxXxxxxxx Xxxxxx CRF Other
45 Pueblo Crossing CRF Retail
46 Augusta Corporate Park CRF Office
00 Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxx CRF Hospitality
50 Widewaters Commons CRF Retail
51 60 East Lake CRF Other
00 Xx Xxxxx Xxxxx Xxxxxxxxxx XXX Multifamily
00 Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxx CRF Hospitality
55 000 Xxxx Xxxxx Xxxxxx CRF Office
61 Xxxxxxxx Medical Arts Center XXX Xxxxxx
00 Xxxxx Xxxxxx Xxxxxxxx Xxxx CRF Xxxxxx
00 000 Xxxxx Xxx Xxxxxxx Xxxxxx CRF Retail
68 Bond Hotel Master Leases CRF Other
70 Xxxxxxx Office & Xxxx #2 Warehouse CRF Industrial
71 International Promenade CRF Retail
72 Centennial Pavilion CRF Retail
73 000 Xxxx Xxxxxxxx Xxx CRF Multifamily
00 X & X Xxxxx XXX Xxxxxx
00 Xxxx Xxxxxx Plaza CRF Retail
79 Cambray Park CRF Multifamily
81 Cambridge Quail CRF Office
83 Generations Medical Center CRF Office
85 Junction Shoppes CRF Retail
86 1963 Grand Concourse CRF Xxxxxx
00 000 Xxxx Xxxxxxxx Xxx CRF Multifamily
88 San Leandro Medical Office CRF Office
89 Rainbow Diablo Medical Building CRF Office
90 Country Lakes Apartments CRF Multifamily
91 McCar Homes CRF Office
92 Cheyenne Fountains CRF Retail
94 Times Square Retail Center CRF Retail
95 Palmdale Xxxxxxx and 12th Street Courtyard East Apartments CRF Multifamily
95.01 Palmdale Xxxxxxx Apartments CRF Multifamily
95.02 12th Street Courtyard East CRF Multifamily
00 Xxxxx Xxxx Xxxxxx - Xxxxxxxx XXX Retail
00 Xxxxxxx Xxxxx Xxxxxxxxxx XXX Multifamily
100 Santee Galleria CRF Retail
000 Xxxxx Xxxxxx Xxxxxxxx XXX Xxxxxx
000 Xxxxxxx Xxxx Xxxxxxx CRF Multifamily
106 Casa Grande Gateway CRF Retail
107 00000 Xxxxxxx Xxx CRF Multifamily
000 Xxxxxxx Xxxxxxxxx Xxxxx XXX Retail
110 Norco Town & Country Business Center CRF Industrial
111 Westlake Professional Center CRF Office
112 1318-1332 Wilshire CRF Retail
000 Xxxxxxxxx 00xx & Xxxxxx XXX Retail
000 Xxxxx Xxxxxxxxxx XXX Multifamily
000 Xxxxxx Xxxxxxxxxxx XXX Retail
118 Alii Sunset Xxxxx XXX Xxxxxx
000 Xxxxxx Xxxxx - Thousand Oaks CRF Office
120 Xxxxxxx Towers CRF Multifamily
000 Xxxxxxxxxx Xxxxx XXX Retail
126 2823 Bristol CRF Office
000 Xxxxxxxxx Xxxxxx Medical Office Building CRF Office
129 Beloit Mall CRF Retail
132 1638 Placentia Avenue CRF Industrial
133 Osco Drug Tucson - Sunrise CRF Retail
134 Osco Drug Tucson - Broadway CRF Retail
136 4120-4160 Xxxxxxxx Apartments CRF Multifamily
137 000 Xxxxx Xxxxxxxx Xxxxxx CRF Multifamily
138 Storage Plus - Xxxxx CRF Self Storage
141 Walgreens Tomball CRF Retail
144 Starbucks - Verizon CRF Retail
145 Xxxxxxxx Place CRF Retail
148 Victorville Pavilion Shops CRF Retail
000 Xxxxxxxx Xxxxxxxxxx XXX Multifamily
000 Xxx Xxxxxxxx Xxxxx XXX Xxxxxx
152 Meadow View Mobile Home Park CRF Manufactured Housing
LOAN # STREET ADDRESS CITY COUNTY
------ -------------- ---- ------
6 000 Xxxx Xxxx Xxxxx Xxx Xxxxxxxxx San Francisco
7 Various Various Various
7.01 0000 Xxxxxxxx Xxxx Xxxxxx Xxxxxxxxxxx
7.02 00 Xxxxx 0xx Xxxxxx Xxxxxxxxxxx Monroe
7.03 0000 Xxxxx Xxxxx Xxxxxxx New Smryna Beach Volusia
7.04 0000 Xxxxx 0xx Xxxxxx Allentown Lehigh
7.05 000 Xxxx Xxxxxxxxx Xxxx Xxxxx Xxxxxxx Xxxxx
7.06 0000 Xxxxxx Xxxxxx Moosic Lackawanna
7.07 0 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxx
7.08 0000 Xxxxxxxxx Xxxx Xxxx Xxxxxxxxxx Catoosa
7.09 0000 Xxxx Xxxxx Xxxxxx Dothan Houston
7.10 0000 Xxxxxx Xxxxxx Dunmore Lackawanna
7.11 000 Xxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxxxxxxxx
8 Various Various Various
8.01 000 Xxxxx Xxx Xxxxxx Xxxx Creve Coeur St. Louis
8.02 0000 Xxxxxxx Xxxx Xxxxxx Xxxxxx
8.03 3320 and 0000 Xxxxx 0xx Xxxxxx Xxxxxxx Maricopa
8.04 0000 Xxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxx Tarrant
8.05 0000 Xxxxx Xxxxxxxxxx Xxxxxxx Midlothian Xxxxx
8.06 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx
10 0000 Xxxx Xxxx Xxxxxxx Xxxxxxxxxxx Prince George's
11 Various Largo Prince George's
11.01 0000 XxXxxxxxx Xxxxx Largo Prince George's
11.02 9200 Basil Court Largo Prince George's
11.03 1220 Xxxxxxx Court Largo Prince George's
11.04 0000 XxXxxxxxx Xxxxx Largo Prince George's
11.05 0000 XxXxxxxxx Xxxxx Largo Prince George's
11.06 1221 Xxxxxxx Court Largo Prince George's
11.07 0000 Xxxxxxxxxx Xxxxx Largo Prince George's
13 Various Various Various
13.01 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx XxXxxx
13.02 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxxx
14 00 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
15 60, 100, 200, 300, 400 and 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
18 000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxx
19 0000 Xxxx Xxxx Xxxxx Xxxx
20 Various Various Xxxx
20.01 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx
20.02 0000 Xxxx 000xx Xxxxxx Xxxxxxx Xxxx
20.03 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx
20.04 1798 and 0000 Xxxxx Xxxxxxx Xxx Xxxxxxx Xxxx
24 Various Tampa Hillsborough
24.01 5905, 5907, 5909, 5910, 5911 and 0000 Xxxxxxxxxxxx Xxxxxxx Tampa Hillsborough
24.02 5802, 5803, 5805, 5807 and 0000 Xxxxxxxxxxxx Xxxxxxx Tampa Hillsborough
26 Various Various Allegheny
26.01 0000 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx
26.02 000 Xxx Xxxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxxxx
26.03 0000 Xxxx Xxxxxxxxxx Xxxxx Munhall Allegheny
26.04 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx
27 Various Various Various
27.01 2401 and 0000 Xxxxxxxxxx Xxxxx Xxxxx Xxxx Xxxxxxxx
27.02 0000 00xx Xxxxxx LeMars Plymouth
30 0000 Xxxxxxx 000 Xxxxx Terrebonne
34 0000 Xxxx Xxx Xxxx Xxxx Xxxxxxxxxx Broward
36 0000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxx
37 0000 Xxxxx Xxxx Xxx Xxxx Xxxx Xxxx Salt Lake
39 1665 West Alameda Drive Tempe Maricopa
42 Various Various Los Angeles
42.01 5601-5731 Xxxxxxx Avenue Xxxxxx City Los Angeles
42.02 000 Xxxxx Xxxxxx Xxxxxx Brea Orange
42.03 0000 XxXxxxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
42.04 0000 XxXxxxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
45 0000-0000 Xxxxx Xxxxxxxxx Xxxxxx Pueblo Pueblo
46 1481, 1485, and 0000 Xxxx Xxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxx
49 00000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx Orange
50 Routes 119 and 201 Connellsville Fayette
51 00 Xxxx Xxxx Xxxxxx Xxxxxxx Xxxx
52 1666 Da Vinci Court Xxxxx Yolo
53 00000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx Orange
55 000 Xxxx Xxxxx Xxxxxx Xxx Xxxxx San Diego
61 0000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx Los Angeles
66 000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx Washtenaw
67 000 Xxxxx Xxx Xxxxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
68 308 Asylum Street Hartford Hartford
70 3100 and 0000 0xx Xxxxxx Xxxxxxxxxx Jefferson
71 4951 West Irlo Xxxxxxx Memorial Highway Kissimmee Osceola
72 7830 and 0000 Xxxx Xxx Xxxx Xxx Xxxxx Xxxxx
73 000 Xxxx Xxxxxxxx Xxx Xxxxxxx Xxx Xxxxxxxxxx
74 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx Xxxxx
75 13414-13466 North 7th Street, 402-428 and 000 Xxxx
Xxxxxxxxxxx Xxxx Xxxxxxx Road Maricopa
79 00000 Xxxx 0xx Xxxxxx Xxxxxx Arapahoe
81 0000-0000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx Xxxxx
83 0000 Xxxxx XxXxxxxxxx Xxxxx Tempe Maricopa
85 000 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx Pinal
86 1963 Grand Concourse Bronx Bronx
87 000 Xxxx Xxxxxxxx Xxx Xxxxxxx Xxx Xxxxxxxxxx
88 00000 Xxxx 00xx Xxxxxx Xxx Xxxxxxx Xxxxxxx
89 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxx Xxxxx
90 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Seminole
91 0000 Xxx Xxxxxx Xxxxxxx Alpharetta Xxxxxx
92 0000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxx
94 4012, 4016, 0000 Xxxxx Xxxxxxx and 0000 Xxxx Xxxxxxxx
Xxxx Xxx Xxxxx Xxxxx
95 Various Palmdale Los Angeles
95.01 0000 Xxxx Xxxxxx X Xxxxxxxx Xxx Xxxxxxx
95.02 38675 and 00000 00xx Xxxxxx Xxxx Xxxxxxxx Los Angeles
96 NWC of North Main Street and Riverside Boulevard Rockford Winnebago
99 1422 Hunter's Point Drive Zionsville Xxxxx
100 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
102 5111 & 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxx Xxxxxx Volusia
104 000 Xxxx Xxxx Xxxx Xxxxxx Erie
106 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxx Grande Pinal
107 16812 Xxxxxxx Way Van Nuys Los Angeles
109 2424 Eastern Boulevard York York
110 1780, 1790 and 0000 Xxxx & Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx
111 0000 Xxxxxx Xxxx Xxxxxxxx Xxxx Ventura
112 1318-1332 Wilshire Boulevard Santa Xxxxxx Los Angeles
115 0000 00xx Xxxxxx Xxxxxxxxxx Sacramento
116 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxx Los Angeles
117 000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx
118 75-5799 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxx
000 00 and 000 Xxxxxx Xxxx Xxxxxxxx Xxxx Ventura
120 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxx Xxx Xxxxxxx
124 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxx
126 0000-0000 Xxxxx Xxxxxxx Xxxxxx Santa Xxx Orange
128 0000 Xxxxxxxxx Xxxxxx Xxxxxxxx Alameda
129 0000 Xxxxxxxxx Xxxx Beloit Rock
132 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxx Orange
133 0000 Xxxx Xxxxxxx Xxxxx Xxxxxx Pima
134 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx Pima
136 4120-4160 Xxxxxxx Street Montclair San Bernardino
137 000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
138 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx Xxxx
141 00000 Xxxxx Xxxxxxx 000 Xxxxxxx Xxxxxx
144 13780-13890 Xxxx Xxxxxxxx Boulevard Greer Greenville
145 1638-1640 Sawtelle Place Los Angeles Los Angeles
148 00000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx San Bernardino
149 112 South Little Flower El Paso El Paso
151 000 00xx Xxxxxx XX Minot Xxxx
152 2384 State Route 350 Xxxxxxx Xxxxx
CUT-OFF DATE ORIGINAL IO MONTHLY IO ANNUAL
LOAN # STATE ZIP CODE BALANCE ($) BALANCE ($) DEBT SERVICE ($) DEBT SERVICE ($)
------ ----- -------- ------------ ------------ ---------------- ----------------
0 XX 00000 62,300,000 62,300,000 285,296.50 3,423,558.06
7 Various Various 59,165,938 59,350,000
7.01 PA 18042 13,889,790 13,933,000
7.02 PA 18360 7,950,267 7,975,000
7.03 FL 32816 6,255,539 6,275,000
7.04 PA 18103 6,096,745 6,115,712
7.05 SC 29841 5,857,242 5,875,464
7.06 PA 18507 5,582,633 5,600,000
7.07 PA 19607 4,810,036 4,825,000
7.08 GA 30742 3,474,192 3,485,000
7.09 AL 36303 3,233,447 3,243,506
7.10 PA 18509 1,420,291 1,424,709
7.11 VA 24540 595,756 597,609
8 Various Various 56,330,000 56,330,000 266,000.82 3,192,009.86
8.01 MO 63141 19,670,000 19,670,000
8.02 XX 00000 15,730,000 15,730,000
8.03 AZ 85012 7,865,000 7,865,000
8.04 XX 00000 5,135,000 5,135,000
8.05 XX 00000 5,135,000 5,135,000
8.06 XX 00000 2,795,000 2,795,000
00 XX 00000 43,360,868 43,500,000
00 XX 00000 43,300,000 43,300,000 218,409.41 2,620,912.92
11.01 MD 20774 10,425,000 10,425,000
11.02 MD 20774 10,285,000 10,285,000
11.03 MD 20774 5,850,000 5,850,000
11.04 MD 20774 4,560,000 4,560,000
11.05 MD 20774 4,300,000 4,300,000
11.06 MD 20774 4,300,000 4,300,000
11.07 MD 20774 3,580,000 3,580,000
13 GA Various 30,915,000 30,915,000 148,363.38 1,780,360.50
13.01 GA 30338 15,494,216 15,494,216
13.02 GA 30092 15,420,784 15,420,784
14 XX 00000 30,000,000 30,000,000 150,815.97 1,809,791.67
00 XX 00000 28,399,000 28,399,000 136,048.96 1,632,587.51
00 XX 00000 22,888,004 23,000,000
00 XX 00000 21,750,000 21,750,000 96,110.33 1,153,323.96
20 IL Various 21,270,000 21,270,000 103,514.00 1,242,168.00
20.01 IL 60652 8,030,000 8,030,000
20.02 XX 00000 5,220,000 5,220,000
20.03 XX 00000 4,120,000 4,120,000
20.04 XX 00000 3,900,000 3,900,000
00 XX 00000 17,600,000 17,600,000 84,612.41 1,015,348.89
24.01 FL 33404 11,880,000 11,880,000
24.02 XX 00000 5,720,000 5,720,000
26 PA Various 17,500,000 17,500,000 85,018.81 1,020,225.69
26.01 PA 15206 7,600,000 7,600,000
26.02 PA 15146 4,900,000 4,900,000
26.03 PA 15120 3,600,000 3,600,000
26.04 PA 15213 1,400,000 1,400,000
27 IA Various 16,961,215 17,000,000
27.01 IA 51111 13,180,052 13,210,191
27.02 IA 51031 3,781,163 3,789,809
30 LA 70360 14,900,000 14,900,000 69,240.16 830,881.94
00 XX 00000 14,250,000 14,250,000 69,470.40 833,644.79
00 XX 00000 13,450,000 13,450,000 64,888.47 778,661.60
37 UT 84116 13,425,000 13,425,000 67,717.01 812,604.06
00 XX 00000 13,175,383 13,200,000
42 CA Various 12,469,946 12,500,000
42.01 XX 00000 9,389,221 9,411,850
42.02 XX 00000 1,265,934 1,268,985
42.03 XX 00000 924,472 926,700
42.04 XX 00000 890,319 892,465
45 CO 81008 11,800,000 11,800,000 56,329.98 675,959.72
46 XX 00000 11,456,250 11,456,250 54,592.21 655,106.56
00 XX 00000 10,776,126 10,800,000
00 XX 00000 10,600,000 10,600,000 48,720.74 584,648.89
00 XX 00000 10,050,000 10,050,000 47,636.30 571,635.63
00 XX 00000 9,900,000 9,900,000 44,165.00 529,980.00
00 XX 00000 9,678,558 9,700,000
00 XX 00000 9,500,000 9,500,000 44,708.28 536,499.31
00 XX 00000 8,373,133 8,400,000
66 XX 00000 7,800,000 7,800,000 38,355.42 460,265.00
00 XX 00000 7,475,556 7,500,000
68 CT 6103 7,000,000 7,000,000
00 XX 00000 6,836,831 6,860,000
00 XX 00000 6,800,000 6,800,000 34,299.86 411,598.33
72 XX 00000 6,755,000 6,755,000 31,675.79 380,109.48
00 XX 00000 6,577,349 6,600,000
74 XX 00000 6,539,400 6,539,400 29,283.49 351,401.93
00 XX 00000 6,525,000 6,525,000 30,431.88 365,182.50
79 CO 80011 6,300,000 6,300,000 28,743.75 344,925.00
81 XX 00000 6,185,762 6,200,000
00 XX 00000 6,100,000 6,100,000 29,403.20 352,838.40
00 XX 00000 6,000,000 6,000,000 27,456.11 329,473.33
00 XX 00000 5,991,986 6,000,000
00 XX 00000 5,979,545 6,000,000
00 XX 00000 5,900,000 5,900,000 28,763.18 345,158.19
89 XX 00000 5,880,000 5,880,000 27,473.35 329,680.17
00 XX 00000 5,821,989 5,835,000
00 XX 00000 5,732,890 5,750,000
92 XX 00000 5,590,000 5,590,000 26,996.85 323,962.24
94 XX 00000 5,500,000 5,500,000
00 XX 00000 5,300,000 5,300,000
95.01 XX 00000 2,835,000 2,835,000
95.02 XX 00000 2,465,000 2,465,000
00 XX 00000 5,290,023 5,320,000
99 IN 46077 5,000,000 5,000,000 24,122.11 289,465.28
000 XX 00000 4,976,791 5,000,000
000 XX 00000 & 32174 4,933,957 4,950,000
000 XX 00000 4,754,148 4,800,000
000 XX 00000 4,382,597 4,410,000
000 XX 00000 4,300,000 4,300,000 19,764.07 237,168.89
000 XX 00000 4,150,000 4,150,000 19,355.14 232,261.67
000 XX 00000 4,000,000 4,000,000 18,959.72 227,516.67
000 XX 00000 3,944,708 3,950,000
000 XX 00000 3,827,326 3,840,000
000 XX 00000 3,695,564 3,700,000
000 XX 00000 3,550,000 3,550,000 17,336.66 208,039.86
000 XX 00000 3,500,000 3,500,000 17,003.76 204,045.14
000 XX 00000 3,488,405 3,500,000
000 XX 00000 3,400,000 3,400,000 16,776.48 201,317.78
000 XX 00000 3,350,000 3,350,000 14,916.42 178,997.01
000 XX 00000 3,076,895 3,100,000
000 XX 00000 2,937,225 2,950,000
000 XX 00000 2,700,000 2,700,000 13,048.75 156,585.00
000 XX 00000 2,696,416 2,700,000
000 XX 00000 2,400,000 2,400,000 11,375.83 136,510.00
000 XX 00000 2,396,798 2,400,000
000 XX 00000 2,097,198 2,100,000
000 XX 00000 1,995,459 2,000,000
000 XX 00000 1,993,699 2,000,000
000 XX 00000 1,956,630 1,965,000
000 XX 00000 1,845,948 1,850,000
000 XX 00000 1,700,000 1,700,000 7,942.97 95,315.69
000 XX 00000 1,697,729 1,700,000
000 XX 00000 1,450,000 1,450,000 7,179.18 86,150.14
000 XX 00000 1,312,440 1,330,000
000 XX 00000 1,073,572 1,075,000
000 XX 00000 996,219 1,000,000
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
COUNTRYWIDE
MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST PRIMARY MASTER TRUSTEE AND
LOAN # SERVICE ($) SERVICE ($) RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE
------ ----------- ----------- ------ ------------- ------------- ----------------
6 350,611.86 4,207,342.32 5.4200 0.0100 0.0100 0.0010
7 349,107.69 4,189,292.28 5.8230 0.0100 0.0100 0.0010
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
8 322,988.07 3,875,856.88 5.5890 0.0100 0.0100 0.0010
8.01
8.02
8.03
8.04
8.05
8.06
10 251,372.62 3,016,471.44 5.6600 0.0100 0.0100 0.0010
11 258,770.82 3,105,249.84 5.9700 0.0100 0.0100 0.0010
11.01
11.02
11.03
11.04
11.05
11.06
11.07
13 179,039.16 2,148,469.92 5.6800 0.0100 0.0100 0.0010
13.01
13.02
14 178,901.91 2,146,822.92 5.9500 0.0100 0.0100 0.0010
15 164,288.42 1,971,461.04 5.6700 0.0100 0.0100 0.0010
18 137,859.54 1,654,314.48 5.2524 0.0100 0.0100 0.0010
19 119,835.02 1,438,020.24 5.2300 0.0100 0.0100 0.0010
20 127,635.84 1,531,630.08 5.7600 0.0100 0.0100 0.0010
20.01
20.02
20.03
20.04
24 102,038.97 1,224,467.64 5.6900 0.0100 0.0100 0.0010
24.01
24.02
26 102,125.25 1,225,503.00 5.7500 0.0100 0.0100 0.0010
26.01
26.02
26.03
26.04
27 98,345.12 1,180,141.44 5.6700 0.0100 0.0100 0.0010
27.01
27.02
30 84,600.56 1,015,206.72 5.5000 0.0100 0.0100 0.0010
34 83,340.27 1,000,083.24 5.7700 0.0100 0.0100 0.0010
36 78,149.11 937,789.32 5.7100 0.0100 0.0100 0.0010
37 80,230.91 962,770.92 5.9700 0.0100 0.0100 0.0010
39 80,980.74 971,768.88 5.4900 0.0100 0.0100 0.0010
42 69,801.71 837,620.52 5.3500 0.0100 0.0100 0.0010
42.01
42.02
42.03
42.04
45 68,113.82 817,365.84 5.6500 0.0100 0.0100 0.0010
46 66,057.17 792,686.04 5.6400 0.0100 0.0100 0.0010
49 63,803.27 765,639.24 5.8630 0.0100 0.0100 0.0010
50 59,787.21 717,446.52 5.4400 0.0100 0.0100 0.0010
51 57,758.33 693,099.96 5.6100 0.0100 0.0100 0.0010
52 54,852.27 658,227.24 5.2800 0.0100 0.0100 0.0010
53 57,304.79 687,657.48 5.8630 0.0100 0.0100 0.0010
55 54,357.92 652,295.04 5.5700 0.0100 0.0100 0.0010
61 48,540.92 582,491.04 5.6600 0.0100 0.0100 0.0010
66 45,866.13 550,393.56 5.8200 0.0100 0.0100 0.0010
67 42,866.94 514,403.28 5.5600 0.0100 0.0100 0.0010
68 44,100.92 529,211.04 5.7650 0.0100 0.0010
70 38,392.65 460,711.80 5.3700 0.0100 0.0100 0.0010
71 40,638.37 487,660.44 5.9700 0.0100 0.0100 0.0010
72 38,566.32 462,795.84 5.5500 0.0100 0.0100 0.0010
73 36,584.56 439,014.72 5.2840 0.0100 0.0100 0.0010
74 36,313.59 435,763.08 5.3000 0.0100 0.0100 0.0010
75 37,130.15 445,561.80 5.5200 0.0100 0.0100 0.0010
79 35,376.44 424,517.28 5.4000 0.0100 0.0100 0.0010
81 35,710.27 428,523.24 5.6300 0.0100 0.0100 0.0010
83 35,423.76 425,085.12 5.7050 0.0100 0.0100 0.0010
85 33,751.80 405,021.60 5.4160 0.0100 0.0100 0.0010
86 35,780.38 429,364.56 5.9500 0.0100 0.0100 0.0010
87 33,392.84 400,714.08 5.3200 0.0100 0.0100 0.0010
88 34,505.80 414,069.55 5.7700 0.0100 0.0100 0.0010
89 33,496.75 401,961.00 5.5300 0.0100 0.0100 0.0010
90 34,274.21 411,290.52 5.8100 0.0100 0.0100 0.0010
91 34,622.17 415,466.04 6.0400 0.0100 0.0100 0.0010
92 32,501.09 390,013.08 5.7160 0.0100 0.0100 0.0010
94 32,552.15 390,625.80 5.8800 0.0100 0.0100 0.0010
95 31,640.01 379,680.12 5.9600 0.0100 0.0100 0.0010
95.01
95.02
96 29,377.24 352,526.88 5.2500 0.0100 0.0100 0.0010
99 29,051.71 348,620.52 5.7100 0.0100 0.0100 0.0010
100 27,517.35 330,208.20 5.2200 0.0100 0.0100 0.0010
102 28,385.70 340,628.40 5.5900 0.0100 0.0100 0.0010
104 32,248.06 386,976.72 5.2140 0.0100 0.0100 0.0010
106 27,239.50 326,874.00 5.5600 0.0100 0.0100 0.0010
107 24,253.30 291,039.60 5.4400 0.0100 0.0100 0.0010
109 23,615.35 283,384.20 5.5200 0.0100 0.0100 0.0010
110 5.6100 0.0100 0.0100 0.0010
111 23,479.47 281,753.64 5.9200 0.0100 0.0100 0.0010
112 21,786.24 261,434.88 5.4930 0.0100 0.0100 0.0010
115 20,321.02 243,852.24 5.5200 0.0100 0.0100 0.0010
116 20,784.54 249,414.48 5.7800 0.0100 0.0100 0.0010
117 20,425.05 245,100.60 5.7500 0.0100 0.0100 0.0010
118 19,813.36 237,760.32 5.4730 0.0100 0.0100 0.0010
119 20,036.29 240,435.48 5.8400 0.0100 0.0100 0.0010
120 5.2700 0.0100 0.0100 0.0010
124 17,601.46 211,217.52 5.5000 0.0100 0.0100 0.0010
126 16,920.45 203,045.40 5.5920 0.0100 0.0100 0.0010
128 15,705.05 188,460.60 5.7200 0.0100 0.0100 0.0010
129 16,205.23 194,462.76 6.0100 0.0100 0.0100 0.0010
132 5.6100 0.0100 0.0100 0.0010
133 14,327.55 171,930.60 5.9600 0.0100 0.0100 0.0010
134 12,536.61 150,439.32 5.9600 0.0100 0.0100 0.0010
136 11,608.01 139,296.12 5.7000 0.0100 0.0100 0.0010
137 11,658.76 139,905.12 5.7400 0.0100 0.0100 0.0010
138 11,379.98 136,559.76 5.6800 0.0100 0.0100 0.0010
141 10,996.71 131,960.52 5.9200 0.0100 0.0100 0.0010
144 9,684.44 116,213.28 5.5300 0.0100 0.0100 0.0010
145 10,137.78 121,653.36 5.9500 0.0100 0.0100 0.0010
148 5.8600 0.0100 0.0100 0.0010
149 7,775.05 93,300.60 5.0000 0.0100 0.0100 0.0010
151 6,445.17 77,342.04 6.0000 0.0100 0.0100 0.0010
152 6,901.84 82,822.08 6.1200 0.0100 0.0100 0.0010
NET
SUB SERVICIN ADMIN. MORTGAGE MATURITY/ AMORT
LOAN # FEE RATE FEE % RATE % ACCRUAL TYPE TERM REM. TERM ARD DATE TERM REM. AMORT
------ -------- ----- ------ ------------ ---- --------- -------- ---- ----------
6 0.021 5.3990 Actual/360 120 118 1/8/2016 360 360
7 0.021 5.8020 Actual/360 120 117 12/8/2015 360 357
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
8 0.021 5.5680 Actual/360 120 119 2/8/2016 360 360
8.01
8.02
8.03
8.04
8.05
8.06
10 0.021 5.6390 Actual/360 120 117 12/8/2015 360 357
11 0.021 5.9490 Actual/360 120 117 12/8/2015 360 360
11.01
11.02
11.03
11.04
11.05
11.06
11.07
13 0.021 5.6590 Actual/360 120 118 1/8/2016 360 360
13.01
13.02
14 0.021 5.9290 Actual/360 120 116 11/8/2015 360 360
15 0.021 5.6490 Actual/360 120 119 2/8/2016 360 360
18 0.021 5.2314 Actual/360 60 57 12/8/2010 300 297
19 0.021 5.2090 Actual/360 120 115 10/8/2015 360 360
20 0.021 5.7390 Actual/360 60 58 1/8/2011 336 336
20.01
20.02
20.03
20.04
24 0.021 5.6690 Actual/360 119 117 12/8/2015 360 360
24.01
24.02
26 0.021 5.7290 Actual/360 120 118 1/8/2016 360 360
26.01
26.02
26.03
26.04
27 0.021 5.6490 Actual/360 120 118 1/8/2016 360 358
27.01
27.02
30 0.021 5.4790 Actual/360 120 119 2/8/2016 360 360
34 0.021 5.7490 Actual/360 120 117 12/8/2015 360 360
36 0.021 5.6890 Actual/360 120 118 1/8/2016 360 360
37 0.021 5.9490 Actual/360 60 57 12/8/2010 360 360
39 0.021 5.4690 Actual/360 120 119 2/8/2016 300 299
42 0.021 5.3290 Actual/360 120 118 1/8/2016 360 358
42.01
42.02
42.03
42.04
45 0.021 5.6290 Actual/360 120 119 2/8/2016 360 360
46 0.021 5.6190 Actual/360 120 119 2/8/2016 360 360
49 0.021 5.8420 Actual/360 120 118 1/8/2016 360 358
50 0.021 5.4190 Actual/360 120 120 3/8/2016 360 360
51 0.021 5.5890 Actual/360 120 117 12/8/2015 360 360
52 0.021 5.2590 Actual/360 120 119 2/8/2016 360 360
53 0.021 5.8420 Actual/360 120 118 1/8/2016 360 358
55 0.021 5.5490 Actual/360 120 118 1/8/2016 360 360
61 0.021 5.6390 Actual/360 120 117 12/8/2015 360 357
66 0.021 5.7990 Actual/360 120 120 3/8/2016 360 360
67 0.021 5.5390 Actual/360 120 117 12/8/2015 360 357
68 0.0700 0.081 5.6840 Actual/360 120 120 3/8/2016 300 300
70 0.021 5.3490 Actual/360 120 117 12/8/2015 360 357
71 0.021 5.9490 Actual/360 120 117 12/8/2015 360 360
72 0.021 5.5290 Actual/360 120 118 1/8/2016 360 360
73 0.021 5.2630 Actual/360 120 117 12/8/2015 360 357
74 0.021 5.2790 Actual/360 120 117 12/8/2015 360 360
75 0.021 5.4990 Actual/360 120 120 3/8/2016 360 360
79 0.021 5.3790 Actual/360 120 120 3/8/2016 360 360
81 0.021 5.6090 Actual/360 120 118 1/8/2016 360 358
83 0.021 5.6840 Actual/360 120 119 2/8/2016 360 360
85 0.021 5.3950 Actual/360 120 117 12/8/2015 360 360
86 0.021 5.9290 Actual/360 60 59 2/8/2011 360 359
87 0.021 5.2990 Actual/360 120 117 12/8/2015 360 357
88 0.021 5.7490 Actual/360 120 119 2/8/2016 360 360
89 0.021 5.5090 Actual/360 120 118 1/8/2016 360 360
90 0.021 5.7890 Actual/360 120 118 1/8/2016 360 358
91 0.021 6.0190 Actual/360 60 57 12/8/2010 360 357
92 0.021 5.6950 Actual/360 120 118 1/8/2016 360 360
94 0.021 5.8590 Actual/360 120 120 3/8/2016 360 360
95 0.021 5.9390 Actual/360 120 120 3/8/2016 360 360
95.01
95.02
96 0.021 5.2290 Actual/360 120 115 10/8/2015 360 355
99 0.021 5.6890 Actual/360 120 118 1/8/2016 360 360
100 0.021 5.1990 Actual/360 120 116 11/8/2015 360 356
102 0.021 5.5690 Actual/360 120 117 12/8/2015 360 357
104 0.021 5.1930 Actual/360 120 116 11/8/2015 240 236
106 0.021 5.5390 Actual/360 120 116 11/8/2015 300 296
107 0.021 5.4190 Actual/360 120 117 12/8/2015 360 360
109 0.0600 0.081 5.4390 Actual/360 84 81 12/8/2012 360 360
110 0.021 5.5890 Actual/360 120 119 2/8/2016 0 0
111 0.021 5.8990 Actual/360 120 119 2/8/2016 360 359
112 0.021 5.4720 Actual/360 120 117 12/8/2015 360 357
115 0.021 5.4990 Actual/360 120 119 2/8/2016 396 395
116 0.021 5.7590 Actual/360 120 116 11/8/2015 360 360
117 0.021 5.7290 Actual/360 120 119 2/8/2016 360 360
118 0.021 5.4520 Actual/360 120 117 12/8/2015 360 357
119 0.021 5.8190 Actual/360 120 117 12/8/2015 360 360
120 0.021 5.2490 Actual/360 120 117 12/8/2015 0 0
124 0.021 5.4790 Actual/360 120 113 8/8/2015 360 353
126 0.021 5.5710 Actual/360 120 116 11/8/2015 360 356
128 0.021 5.6990 Actual/360 120 119 2/8/2016 360 360
129 0.021 5.9890 Actual/360 120 119 2/8/2016 360 359
132 0.021 5.5890 Actual/360 120 119 2/8/2016 0 0
133 0.021 5.9390 Actual/360 120 119 2/8/2016 360 359
134 0.021 5.9390 Actual/360 120 119 2/8/2016 360 359
136 0.021 5.6790 Actual/360 120 118 1/8/2016 360 358
137 0.021 5.7190 Actual/360 120 117 12/8/2015 360 357
138 0.021 5.6590 Actual/360 120 116 11/8/2015 360 356
141 0.021 5.8990 Actual/360 120 118 1/8/2016 360 358
144 0.021 5.5090 Actual/360 120 117 12/8/2015 360 360
145 0.021 5.9290 Actual/360 120 119 2/8/2016 360 359
148 0.021 5.8390 Actual/360 120 120 3/8/2016 0 0
149 0.021 4.9790 Actual/360 120 112 7/8/2015 300 292
151 0.021 5.9790 Actual/360 120 119 2/8/2016 360 359
152 0.021 6.0990 Actual/360 120 118 1/8/2016 264 262
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
COUNTRYWIDE
ARD ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF
LOAN # TITLE TYPE ARD LOAN STEP UP INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT
------- ---------- -------- ------- --------- --------- -------------- ------- ------
6 Fee No No No No No No
7 Fee/Leasehold No No No No Yes No
7.01 Fee No
7.02 Fee No
7.03 Fee No
7.04 Fee No
7.05 Leasehold No
7.06 Fee No
7.07 Fee No
7.08 Fee No
7.09 Fee/Leasehold No
7.10 Fee No
7.11 Leasehold No
8 Fee No No No No Yes No
8.01 Fee No
8.02 Fee No
8.03 Fee No
8.04 Fee No
8.05 Fee No
8.06 Fee No
10 Fee No No No No No No
11 Fee No No No No Yes No
11.01 Fee No
11.02 Fee No
11.03 Fee No
11.04 Fee No
11.05 Fee No
11.06 Fee No
11.07 Fee No
13 Fee No No No No No No
13.01 Fee No
13.02 Fee No
14 Fee No No No No No No
15 Fee No No No No No No
18 Fee No No No No No No
19 Fee No No No No No No
20 Fee No No No No Yes Yes
20.01 Fee No
20.02 Fee No
20.03 Fee No
20.04 Fee No
24 Fee No No No No Yes No
24.01 Fee No
24.02 Fee No
26 Fee No No No No Yes No
26.01 Fee No
26.02 Fee No
26.03 Fee No
26.04 Fee No
27 Fee No No No No Yes No
27.01 Fee No
27.02 Fee No
30 Fee No No No No Yes No
34 Fee No No No No No No
36 Fee No No No No No No
37 Fee No No No No No No
39 Fee No No No No No No
42 Fee No No No No Yes No
42.01 Fee No
42.02 Fee No
42.03 Fee No
42.04 Fee No
45 Fee Yes Greater of: (i) Initial No No No No No
Interest Rate plus 2%
or (ii) 10 yr Treasury
Rate plus 3.18%
46 Fee No No No No No No
49 Fee No No No No No No
50 Fee No No No No No No
51 Fee No No No No No No
52 Fee No No No No No No
53 Fee No No No No No No
55 Fee No No No No No No
61 Fee No No No No No No
66 Fee No No No No No No
67 Fee No No No No No No
68 Fee No No No No No No
70 Fee No No No No No No
71 Fee No No No No No No
72 Fee No No No No No No
73 Fee No No No No No No
74 Fee No No No No No No
75 Fee No No No No No No
79 Fee No No No No No No
81 Fee No No No No No No
83 Fee No No No No No No
85 Fee No No No No No No
86 Fee No No No No No No
87 Fee No No No No No No
88 Fee No No No No No No
89 Fee No No No No No No
90 Fee No No No No No No
91 Fee Yes Greater of: (i) Initial No No No No No
Interest Rate plus 5%
or (ii) 5 yr Treasury
Rate plus 6.19%
92 Fee No No No No No No
94 Fee No No No No No No
95 Fee No No No No No No
95.01 Fee No
95.02 Fee No
96 Fee No No No No No No
99 Fee No No No No No No
100 Fee No No No No No No
102 Fee No No No No No No
104 Fee No No No No No Yes
106 Fee No No No No No No
107 Fee No No No No No No
109 Fee No No No No No No
110 Fee No No No No No No
111 Fee No No No No No No
112 Fee No No No No No No
115 Fee No No No No No No
116 Fee No No No No No No
117 Fee No No No No No No
118 Fee/Leasehold No No No No No No
119 Fee No No No No No No
120 Fee No No No No No No
124 Fee No No No No No No
126 Fee No No No No No No
128 Fee No No No No No No
129 Fee No No No No No No
132 Fee No No No No No No
133 Fee No No No No No No
134 Fee No No No No No No
136 Fee No No No No No No
137 Fee No No No No No No
138 Fee No No No No No No
141 Fee No No No No No No
144 Fee No No No No No No
145 Fee No No No No No No
148 Fee No No No No No No
149 Fee No No No No No No
151 Fee No No No No No No
152 Fee No No No No Yes No
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
LOCKBOX IN HOLDBACK ENGINEERING CAPEX ENVIR. TI/LC RE TAX INS.
LOAN # PLACE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ----- ------ ----------- ----------- ------------- ----------- ----------- -----------
6 No 101,000 259,524 198,918
7 No 2,328,260 860,941 90,137
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
8 No 556,911
8.01
8.02
8.03
8.04
8.05
8.06
10 Yes 340,025
11 Yes 10,000 193,333 61,660
11.01
11.02
11.03
11.04
11.05
11.06
11.07
13 Yes 627,000 3,325,000 78,690 7,199
13.01
13.02
14 Yes 688,478 64,535
15 Yes 1,000,000 2,120,000 95,563 7,240
18 Yes 2,214,733 42,149 17,324
19 No 352,146 7,543
20 Yes 160,980 2,403
20.01
20.02
20.03
20.04
24 Yes 200,000 24,734 44,278
24.01
24.02
26 Yes 115,536 31,461
26.01
26.02
26.03
26.04
27 Yes
27.01
27.02
30 No 4,635 16,780
34 Yes
36 No 46,445 30,178
37 Yes 6,250,000 31,433 71,488
39 No 49,400
42 No
42.01
42.02
42.03
42.04
45 Yes 75,000 71,202 13,473
46 No 300,000 1,514
49 Yes 41,435
50 No
51 No 107,500 6,449
52 No 50,327
53 Yes 44,640
55 No
61 No 22,382 16,093
66 No 95,044
67 No 15,009
68 No
70 Yes 1,250 8,293 12,194
71 Yes 9,908 12,638
72 No 125,000 2,186
73 No 18,750 13,703
74 No 150,000 7,360
75 No 16,000 4,328 48,178
79 No 1,000,000 41,890
81 No 90,000 7,919
83 Yes 20,778
85 No 6,875 75,000 31,280
86 Yes 38,292 4,885
87 No 12,390
88 No 7,001 956
89 No 200,000 7,895
90 Yes 14,474 5,884 4,764
91 Yes 14,601 4,245
92 No 90,000 125,000 803
94 Yes 10,686
95 No 103,665
95.01
95.02
96 Yes 17,515 18,815
99 No 9,113 18,548 2,637
100 No 12,538 9,414
102 No 110,000 26,449
104 No 50,298 26,664
106 No
107 No 21,106 6,250
109 Yes 50,000 36,122 3,350
110 No 12,508 923
111 No 35,625 100,000 5,863 1,133
112 No 6,510
115 Yes
116 No 12,143
117 No 386
118 No 18,750 13,515
119 No 100,000 14,802 1,282
120 No 869 19,266 9,183
124 No 247,260 45,694 8,090
126 No 65,000 7,500 150,000 4,720 8,535
128 No 625 100,000 18,500 1,063
129 No 25,000 177
132 No 4,375 6,743 761
133 No
134 Yes
136 No 11,911 4,750
137 No 7,516 5,824 5,755
138 No
141 Yes
144 No 17,500 401
145 No 3,341 467
148 No 32,810 2,305
149 No 6,563 2,743 1,600
151 No 50,000 3,293 727
152 Yes 11,250 27,222 621
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
COUNTRYWIDE
UPFRONT MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
OTHER CAPEX CAPEX TI/LC TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------ ----------- ----------- --------------- ----------- --------------- ----------- ----------- ----------- ------
6 55,847 49,730 0
7 28,565 16,938 73,398 98,121 10,015 9,522 0
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
8 117,390 0
8.01
8.02
8.03
8.04
8.05
8.06
10 6,576 85,006 0
11 5,350,000 7,038 33,959 48,333 8,809 0
11.01
11.02
11.03
11.04
11.05
11.06
11.07
13 1,364,411 13,065 39,345 7,199 0
13.01
13.02
14 6,362 22,809 114,656 5,867 34,992 0
15 6,322 25,288 23,891 3,620 0
18 5,665 20,197 21,074 8,662 0
19 6,583 150,000 27,088 7,543 0
20 4,019 144,687 36,587 2,403 0
20.01
20.02
20.03
20.04
24 4,557 13,672 34,028 8,587 0
24.01
24.02
26 3,461 20,846 3,146 0
26.01
26.02
26.03
26.04
27 6,861 411,650 45,526 0
27.01
27.02
30 3,334 50,000 2,318 8,390 0
34 854 7,259 14,060 10,125 0
36 2,083 11,612 2,515 0
37 28,000 15,716 8,015 0
39 3,891 233,452 0
42 0
42.01
42.02
42.03
42.04
45 1,142 5,000 275,000 25,000 2,245 0
46 529,030 7,750 300,000 8,960 1,514 0
49 13,241 11,745 0
50 1,450,000 0
51 750,000 1,019 25,000 586 0
52 1,063 4,575 2,643 0
53 13,510 11,547 0
55 18,992 0
61 267,600 1,249 44,964 6,243 224,736 7,461 1,463 0
66 910 50,000 21,557 0
67 5,003 567 0
68 1,050,000 0
70 1,753 8,293 2,032 0
71 595 3,345 120,420 4,954 1,053 0
72 80,394 2,633 125,000 3,885 1,093 0
73 4,112 4,570 3,958 0
74 5,303 150,000 7,360 1,042 0
75 272,800 1,059 1,589 57,198 9,836 0
79 5,564 3,491 0
81 150,000 1,080 90,000 3,960 0
83 469 5,805 521 0
85 4,222 2,455 104,000 7,820 695 0
86 350 3,938 225,000 6,382 2,443 0
87 3,000 4,130 2,554 0
88 135,000 374 2,665 7,001 956 0
89 2,528 200,000 3,947 733 0
90 2,750 5,884 4,764 0
91 467 7,301 1,415 0
92 2,363 125,000 3,045 803 0
94 5,705 1,527 0
95 500,000 1,959 84,600 5,110 1,770 0
95.01
95.02
96 40,000 3,453 4,111 410,000 8,758 1,882 0
99 2,427 9,274 2,637 0
100 6,269 941 0
102 689 3,443 123,933 5,417 3,778 0
104 2,500 60,000 11,759 2,424 0
106 210 2,500 75,000 0
107 1,096 5,277 1,042 0
109 516 200,000 5,216 1,675 0
110 6,313 923 0
111 372 3,015 225,000 2,931 618 0
112 2,170 197 0
115 50,000 0
116 550,000 1,021 2,024 1,021 0
117 239 597 21,509 3,099 192 0
118 381 950 3,379 1,506 0
119 331 2,068 74,450 4,934 641 0
120 3,712 1,020 0
124 300,000 2,000 350,000 5,712 1,011 0
126 1,573 711 0
128 263 4,118 532 0
129 267 1,333 75,000 6,755 177 0
132 4,440 761 0
133 169 0
134 169 0
136 1,702 948 0
137 2,912 1,151 0
138 759 2,856 416 0
141 166 553 0
144 667 513 1,250 401 0
145 1,670 233 0
148 4,102 1,152 0
149 1,333 2,743 1,180 0
151 237 833 80,000 1,647 364 0
152 208 2,269 311 0
