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MORTGAGE LOAN PURCHASE AGREEMENT
between
LASALLE BANK NATIONAL ASSOCIATION
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of March 17, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE...................................................2
2. CONVEYANCE OF MORTGAGE LOANS............................................2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.................10
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.................12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER.........................................................15
6. CLOSING................................................................20
7. CLOSING DOCUMENTS......................................................21
8. COSTS..................................................................23
9. NOTICES................................................................23
10. SEVERABILITY OF PROVISIONS.............................................24
11. FURTHER ASSURANCES.....................................................24
12. SURVIVAL...............................................................24
13. GOVERNING LAW..........................................................24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT...........................25
15. MISCELLANEOUS..........................................................25
16. ENTIRE AGREEMENT.......................................................25
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................17
Agreement......................................................................1
Certificate Purchase Agreement.................................................1
Certificates...................................................................1
Closing Date...................................................................2
Collateral Information........................................................10
Crossed Mortgage Loans........................................................16
Defective Mortgage Loan.......................................................16
Final Judicial Determination..................................................19
Indemnification Agreement.....................................................13
Initial Purchaser..............................................................1
Material Breach...............................................................15
Material Document Defect......................................................15
Memorandum.....................................................................1
Mortgage File..................................................................3
Mortgage Loan Schedule.........................................................2
Mortgage Loans.................................................................1
Officer's Certificate..........................................................6
Pooling and Servicing Agreement................................................1
Private Certificates...........................................................1
Prospectus Supplement..........................................................1
Public Certificates............................................................1
Purchaser......................................................................1
Repurchased Loan..............................................................17
Seller.........................................................................1
Special Servicer...............................................................1
Trust..........................................................................1
Trustee........................................................................1
Underwriters...................................................................1
Underwriting Agreement.........................................................1
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MORTGAGE LOAN PURCHASE AGREEMENT
(LASALLE LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of March 17, 2006,
between LaSalle Bank National Association (the "Seller"), and Xxxxxx Xxxxxxx
Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of March 1, 2006, between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer ("Special Servicer"), U.S. Bank National Association, as trustee
("Trustee") and LaSalle Bank National Association, as paying agent, certificate
registrar and authenticating agent. In exchange for the Mortgage Loans and
certain other mortgage loans (the "Other Mortgage Loans") to be purchased by
Purchaser, the Trust will issue to the Depositor pass-through certificates to be
known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ8 (the "Certificates"). The Certificates will be
issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement. The term "Master
Servicer" as used herein shall mean Xxxxx Fargo Bank, National Association in
its capacity as a master servicer under the Pooling and Servicing Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M, Class A-J, Class B, Class C, Class D, Class E and Class F Certificates (the
"Public Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated, LaSalle Financial Services, Inc., Banc of America Securities LLC
and Greenwich Capital Markets, Inc. (the "Underwriters"), pursuant to an
Underwriting Agreement, between Purchaser and the Underwriters, dated March 17,
2006 (the "Underwriting Agreement"), and the Class X, Class X-RC, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class T, Class R-I, Class R-II and Class R-III Certificates (the "Private
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated
(the "Initial Purchaser") pursuant to a Certificate Purchase Agreement, between
Purchaser and the Initial Purchaser, dated March 17, 2006 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated June 7, 2005, as supplemented by a
Prospectus Supplement dated March 17, 2006 (together with the Prospectus, the
"Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
March 17, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
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1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is March 1, 2006.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of $1,131,961,968. The sale of the
Mortgage Loans shall take place on March 28, 2006 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by Purchaser for the Mortgage Loans shall equal the amount set
forth as such purchase price on Exhibit 3 hereto. The purchase price shall be
paid to Seller by wire transfer in immediately available funds on the Closing
Date.
1.2 On the Closing Date, Purchaser will assign to Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14), and Trustee shall succeed to such right, title and interest in
and to the Mortgage Loans and Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein, all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
March 1, 2006, will be executed by Seller and Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date.
The Mortgage Loan Schedule, as it may be amended from time to time on or prior
to the Closing Date, shall conform to the requirements of this Agreement and the
Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 5 in favor of Trustee,
Master Servicer and Special Servicer to empower Trustee, Master Servicer and, in
the event of the failure or incapacity of Trustee and Master Servicer, Special
Servicer, to submit for recording, at the expense of Seller, any Mortgage Loan
documents required to be recorded as described in the Pooling and Servicing
Agreement and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage Files (so long as original
counterparts have previously been delivered to Trustee). Seller agrees to
reasonably cooperate with Trustee, Master Servicer and Special Servicer in
connection with any additional powers of attorney or revisions thereto that are
requested by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used with respect to any Mortgage
Loan by
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or under authorization by any party hereto except to the extent that the absence
of a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to Seller, but in no event
earlier than 18 months from the Closing Date, and (ii) the date (if any) on
which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. Trustee
shall submit such documents for recording, at Seller's expense, after the
periods set forth above, provided, however, Trustee shall not submit such
assignments for recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its return from
the applicable recording office. In addition, not later than the 30th day
following the Closing Date, Seller shall deliver to or on behalf of Trustee each
of the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions and additional time periods as are permitted by this Section 2)
with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller
acknowledges that the term "without recourse" does not modify the duties of
Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by or on behalf of Trustee in escrow on behalf of Seller at
all times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-HQ8, without recourse, representation or warranty" or if the
original Mortgage Note is not included therein, then a lost note affidavit, with
a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been
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delivered to the appropriate recording office for recordation and either has not
yet been returned on or prior to the 90th day following the Closing Date with
evidence of recordation thereon or has been lost after recordation, a true copy
of such modification, consolidation or extension certified by Seller together
with (i) in the case of a delay caused by the public recording office, an
Officer's Certificate of Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-HQ8,"
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause Trustee to be
shown as the owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 90th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by Seller to be a true and
complete copy of the original Assignment of Leases submitted for recording,
together with (i) an original of each assignment of such Assignment of Leases
with evidence of recording thereon
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and showing a complete recorded chain of assignment from the named assignee to
the holder of record, and if any such assignment of such Assignment of Leases
has not been returned from the applicable public recording office, a copy of
such assignment certified by Seller to be a true and complete copy of the
original assignment submitted for recording, and (ii) an original assignment of
such Assignment of Leases, in recordable form, signed by the holder of record in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-HQ8," which
assignment may be effected in the related Assignment of Mortgage, provided, if
the related Mortgage has been recorded in the name of MERS or its designee, no
assignment of Assignment of Leases in favor of Trustee will be required to be
recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
2.2.7 The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
2.2.9 (A) Copies of UCC financing statements (together with all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements assigning such
UCC financing statements to Trustee executed and delivered in connection with
the Mortgage Loan, provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no such financing statements will be required to
be recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to Trustee on
behalf of the Trust with a copy to be held by Primary Servicer (or Master
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Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement or (B) the original of each letter
of credit, if any, constituting additional collateral for such Mortgage Loan
(other than letters of credit representing tenant security deposits which have
been collaterally assigned to the lender), which shall be held by Primary
Servicer (or Master Servicer) on behalf of Trustee, with a copy to be held by
Trustee, and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement (it being understood that Seller
has agreed (a) that the proceeds of such letter of credit belong to the Trust,
(b) to notify, on or before the Closing Date, the bank issuing the letter of
credit that the letter of credit and the proceeds thereof belong to the Trust,
and to use reasonable efforts to obtain within 30 days (but in any event to
obtain within 90 days) following the Closing Date, an acknowledgement thereof by
the bank (with a copy of such acknowledgement to be sent to Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of Seller to
assign the letter of credit hereunder including the right and power to draw on
the letter of credit). In the case of clause (B) above, any letter of credit
held by Primary Servicer (or Master Servicer) acknowledges that any letter of
credit held by it shall be held in its capacity as agent of the Trust, and if
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, Primary Servicer (or Master Servicer) has agreed to assign the
applicable letter of credit to the Trust or at the direction of Special Servicer
to such party as Special Servicer may instruct, in each case, at the expense of
Primary Servicer (or Master Servicer). Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
2.2.13 The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
2.2.14 Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
2.2.15 The original or a copy of any Environmental Insurance Policy;
and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to Primary Servicer within 30 days of the Closing Date.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
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2.3 The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections 2.2.2,
2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon, solely because of a
delay caused by the public recording office where such document or instrument
has been delivered for recordation within such 90 day period, but Seller
delivers a photocopy thereof (certified by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording), to Trustee within such 90 day period, Seller shall then deliver
within 180 days after the Closing Date the recorded document (or within such
longer period after the Closing Date as Trustee may consent to, which consent
shall not be unreasonably withheld so long as Seller is, as certified in writing
to Trustee no less often than monthly, in good faith attempting to obtain from
the appropriate county recorder's office such original or photocopy).
2.5 Trustee, as assignee or transferee of Purchaser, shall be entitled to
all scheduled payments of principal due thereon after the Cut-Off Date, all
other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to
Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver, and
Purchaser, Trustee or the agents of either may submit or cause to be submitted
for recordation at the expense of Seller, in the appropriate public office for
real property records, each assignment referred to in clauses 2.2.4 and
2.2.6(ii) above (with recording information in blank if such information is not
yet available). Within 10 days following the Closing Date, Seller shall deliver,
and Purchaser, Trustee or the agents of either may submit or cause to be
submitted for filing, at the expense of Seller, in the appropriate public office
for Uniform Commercial Code financing statements, the assignment referred to in
clause 2.2.9(B). If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller shall, at
its own expense (except in the case of a document or instrument that is lost by
Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
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2.7 As to each Mortgage Loan secured by a Mortgaged Property with respect to
which the related Mortgagor has entered into a franchise agreement and each
Mortgage Loan secured by a Mortgaged Property with respect to which a letter of
credit is in place, Seller shall provide a notice on or prior to the date that
is 30 days after the Closing Date to the franchisor or the issuing financial
institution, as applicable, of the transfer of such Mortgage Loan to the Trust
pursuant to the Pooling and Servicing Agreement, and inform such parties that
any notices to the Mortgagor's lender pursuant to such franchise agreement or
letter of credit should thereafter be forwarded to Master Servicer and, with
respect to each franchise agreement, provide a franchise comfort letter to the
franchisor on or prior to the date that is 30 days after the Closing Date. After
the Closing Date, with respect to any letter of credit that has not yet been
assigned to the Trust, upon the written request of Master Servicer or the
applicable Primary Servicer, Seller will draw on such letter of credit as
directed by Master Servicer or such Primary Servicer in such notice to the
extent Seller has the right to do so.
2.8 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the servicing of any Mortgage Loans and that are
not required to be a part of the Mortgage File and are reasonably necessary for
the ongoing administration and/or servicing of the applicable Mortgage Loan (the
"Servicing File") shall be delivered to Trustee shall be shipped by Seller to or
at the direction of Master Servicer, on behalf of Purchaser, on or prior to the
75th day after the Closing Date, in accordance with Section 3.1 of the Primary
Servicing Agreement, if applicable.
2.9 The documents required to be delivered to Master Servicer (or in the
alternative, Primary Servicer) shall include, to the extent required to be (and
actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses or data. Delivery of
any of the foregoing documents to Primary Servicer shall be deemed a delivery to
Master Servicer and satisfy Seller's obligations under this subparagraph. Each
of the foregoing items may be delivered by Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to Master Servicer.
2.10 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in Purchaser and its
assigns, and the ownership of all records and documents constituting the
Servicing File with respect to the related Mortgage Loan prepared by or that
come into the possession of Seller shall immediately vest in Purchaser and its
assigns, and shall be delivered promptly by Seller to or on behalf of either
Trustee or Master Servicer as set forth herein, subject to the requirements of
the Primary Servicing Agreement. Seller's and
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Purchaser's records shall reflect the transfer of each Mortgage Loan from Seller
to Purchaser and its assigns as a sale.
2.11 It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to Purchaser by Seller as provided in
this Section 2 be, and be construed as, an absolute sale of the Mortgage Loans
and related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.11.1 this Agreement shall be deemed to be a security agreement; and
2.11.2 the conveyance provided for in this Section 2 shall be deemed to
be a grant by Seller to Purchaser of a security interest in all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the following
property: the Mortgage Loans identified on the Mortgage Loan Schedule,
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
B. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (A) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
C. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.12 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
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2.13 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.14 Seller shall, to the extent consistent with this Agreement and upon
request by or on behalf of Purchaser, take such reasonable actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the property described above, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. In such case,
Seller hereby authorizes Trustee to file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
2.15 Notwithstanding anything to the contrary contained herein, and subject
to Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as
to which any Mortgage Note (endorsed as described in clause 2.2.1) required to
be delivered to or on behalf of Trustee or Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of Purchaser's or its successors' and assigns' rights in
respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or Trustee to cause Seller to cure any Material
Document Defect or Material Breach (each as defined below), or to repurchase or
replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency to examine and audit all books, records and
files pertaining to the Mortgage Loans, Seller's
10
underwriting procedures and Seller's ability to perform or observe all of the
terms, covenants and conditions of this Agreement. Such examinations and audits
shall take place at one or more offices of Seller during normal business hours
and shall not be conducted in a manner that is disruptive to Seller's normal
business operations upon reasonable prior advance notice. In the course of such
examinations and audits, Seller will make available to such representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
Seller shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide Purchaser with
all material information regarding Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements as
provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller in
any material respect. Within 45 days after the Closing Date, Seller shall
provide Master Servicer or Primary Servicer, if applicable, with any additional
information identified by Master Servicer or Primary Servicer, if applicable, as
necessary to complete the CMSA Property File, to the extent that such
information is available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and
the Mortgage Loans that has been delivered into Purchaser's possession and that
is not otherwise publicly available; provided, however, that such information
shall not be kept confidential (and the right to require confidentiality under
any confidentiality agreement is hereby waived) to the extent such information
is required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
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4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes
for the benefit of Purchaser and its assigns with respect to each Mortgage Loan
(subject to the last paragraph of this Section 4.1) as of the date hereof (or as
of such other date specifically set forth in the particular representation and
warranty) each of the representations and warranties set forth on Exhibit 2
hereto, except as otherwise set forth on Schedule A attached thereto, and hereby
further represents and warrants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States. Seller
has the requisite power and authority and legal right to own the Mortgage Loans
and to transfer and convey the Mortgage Loans to Purchaser and has the requisite
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed
and delivered by Seller, and assuming the due authorization, execution and
delivery hereof by Purchaser, this Agreement constitutes the valid, legal and
binding agreement of Seller, enforceable in accordance with its terms, except as
such enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage,
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contract or other instrument, other than pursuant to this Agreement, or (C)
after giving effect to the consents or taking of the actions contemplated in
subsection 4.1.3, any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over Seller
or its assets, except where in any of the instances contemplated by clauses (B)
or (C) above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by Seller or materially and
adversely affect its ability to perform its obligations and duties hereunder or
result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5 There are no actions or proceedings against, or investigations
of, Seller pending or, to Seller's knowledge, threatened in writing against
Seller before any court, administrative agency or other tribunal, the outcome of
which could reasonably be expected to materially and adversely affect the
transfer of the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by Seller of all of its right, title
and interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated March 17, 2006, between Seller,
Purchaser, the Underwriters and the Initial Purchaser (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (when read together with the Final Prospectus Supplement,
in the case of Public Certificates, or when read together with the Memorandum,
in the case of the Private Certificates). Notwithstanding anything contained
herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the
benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, provided that any representations
and warranties made as of a specified date shall be true and correct in all
material respects as of such specified date.
4.1.8 Seller has complied with the disclosure requirements of
Regulation AB that arise from its role as "seller" and "sponsor" in connection
with the issuance of the Certificates.
4.1.9 For so long as the Trust is subject to the reporting
requirements of the Exchange Act, Seller shall provide Purchaser (or with
respect to any Serviced Companion Mortgage Loan
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that is deposited into an Other Securitization, the depositor in such Other
Securitization) and the Paying Agent with any Additional Form 10-D Disclosure
and any Additional Form 10-K Disclosure set forth next to Seller's name on
Schedule XV and Schedule XVI of the Pooling and Servicing Agreement within the
time periods set forth in the Pooling and Servicing Agreement.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
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4.2.6 There are no actions or proceedings against, or investigations
of, Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker,
agent or other person, other than Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
consummation of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of
Trustee on behalf of the holders of the Certificates, whether directly or by way
of Purchaser's assignment of its rights hereunder to Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to Trustee pursuant to Section 2 is not delivered as and when required
(and including the expiration of any grace or cure period), is not properly
executed or is defective on its face, or if there is a breach of any of the
representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph 42 of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly
15
(but in any event within three Business Days) upon becoming aware of any such
Material Document Defect or Material Breach, Master Servicer shall, and Special
Servicer may, request that Seller, not later than 90 days from Seller's receipt
of the notice of such Material Document Defect or Material Breach, cure such
Material Document Defect or Material Breach, as the case may be, in all material
respects; provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all material
respects within such 90 day period, and such Material Document Defect or
Material Breach would not cause the Mortgage Loan to be other than a "qualified
mortgage"(as defined in the Code) but Seller is diligently attempting to effect
such correction or cure, as certified by Seller in an Officer's Certificate
delivered to Trustee, then the cure period will be extended for an additional 90
days unless, solely in the case of a Material Document Defect, (x) the Mortgage
Loan is, at the end of the initial 90 day period, then a Specially Serviced
Mortgage Loan and a Servicing Transfer Event has occurred as a result of a
monetary default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" in the Pooling and Servicing Agreement and (y) the
Material Document Defect was identified in a certification delivered to Seller
by Trustee pursuant to Section 2.2 of the Pooling and Servicing Agreement not
less than 90 days prior to the delivery of the notice of such Material Document
Defect. The parties acknowledge that neither delivery of a certification or
schedule of exceptions to Seller pursuant to Section 2.2 of the Pooling and
Servicing Agreement or otherwise nor possession of such certification or
schedule by Seller shall, in and of itself, constitute delivery of notice of any
Material Document Defect or knowledge or awareness by Seller of any Material
Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured in all material respects
within the above cure periods, Seller shall, on or before the termination of
such cure periods, either (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from Purchaser or its assignee at the Purchase Price as defined in
the Pooling and Servicing Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at its option replace, without recourse, any Mortgage Loan or REO
Mortgage Loan to which such defect relates with a Qualifying Substitute Mortgage
Loan. If such Material Document Defect or Material Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence or the previous paragraph, repurchase
or substitution must occur within 90 days from the date Seller was notified of
the breach or defect. Seller agrees that any substitution shall be completed in
accordance with the terms and conditions of the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to
16
repurchase or replace each such Crossed Mortgage Loan in accordance with the
provisions above, unless, in the case of such breach or document defect, (A)
Seller provides a Nondisqualification Opinion to Trustee at the expense of
Seller if Trustee acting at the direction of the Controlling Class determines
that it would be usual and customary in accordance with industry practice to
obtain a Nondisqualification Opinion and (B) both of the following conditions
would be satisfied if Seller were to repurchase or replace only those Mortgage
Loans as to which a Material Breach or Material Document Defect had occurred
without regard to this paragraph (the "Affected Loan(s)"): (i) the debt service
coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than the greater of (A) the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth
under the heading "NCF DSCR" in Appendix II to the Final Prospectus Supplement
and (B) 1.25x, and (ii) the loan-to-value ratio for all such Crossed Mortgage
Loans (excluding the Affected Loan(s)) is not greater than the lesser of (A) the
current loan-to-value ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "Cut-Off Date LTV" in Appendix II to the
Final Prospectus Supplement and (B) 75%. The determination of Master Servicer as
to whether the conditions set forth above have been satisfied shall be
conclusive and binding in the absence of manifest error. Master Servicer will be
entitled to cause to be delivered, or direct Seller to (in which case Seller
shall) cause to be delivered to Master Servicer; (A) an Appraisal of any or all
of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of Seller if the scope and cost of the Appraisal is approved by Seller
(such approval not to be unreasonably withheld) and (B) an opinion of counsel
that not requiring the repurchase of each such other Mortgage Loan will not
result in an Adverse REMIC Event.
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller
is required to repurchase or substitute for such Defective Mortgage Loan (each,
a "Repurchased Loan") in the manner prescribed above while Trustee (as assignee
of Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the
17
preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
5.6 Upon occurrence (and after any applicable cure or grace period), any of
the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity that appears to be regular on its face; (b) the
absence from the Mortgage File of the original signed Mortgage that appears to
be regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the Mortgage
was recorded; or (c) the absence from the Mortgage File of the item specified in
paragraph 2.2.8. If any of the foregoing Material Document Defects is discovered
by the Custodian (or Trustee if there is no Custodian), Trustee (or as set forth
in Section 2.3(a) of the Pooling and Servicing Agreement, Master Servicer) will
take the steps described elsewhere in this Section, including the giving of
notices to the Rating Agencies and the parties hereto and making demand upon
Seller for the cure of the Material Document Defect or repurchase or replacement
of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a
correction or cure of such Material Document Defect or Material Breach, (ii) to
repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than Seller shall
be without (i) recourse of any kind (either express or implied) by such Person
against Seller and (ii) representation or warranty of any kind (either express
or implied) by Seller to or for the benefit of such Person.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or
REO Properties, as applicable, in accordance with Section 9.36 of the Pooling
and Servicing Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. After a final liquidation of the Mortgage Loan
or REO Mortgage Loan, if a court of
18
competent jurisdiction issues a final order after the expiration of any
applicable appeal period that Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan (a "Final Judicial Determination") or
Seller otherwise accepts liability, then, but in no event later than the
Termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, Seller will be obligated to pay to the Trust the difference between
any Liquidation Proceeds received upon such liquidation in accordance with the
Pooling and Servicing Agreement (including those arising from any sale to
Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, Special Servicer shall not receive a Liquidation
Fee from Seller (but may collect such Liquidation Fee from the related
Liquidation Proceeds as otherwise provided herein); provided, however, that in
the event Seller is obligated to repurchase the Mortgage Loan or REO Mortgaged
Property after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to any
Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Mortgaged Property. Except as expressly set
forth above, no Liquidation Fee shall be payable in connection with a repurchase
of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of
the representations and warranties set forth in paragraph 39 of Exhibit 2 hereto
because the underlying loan documents do not provide for the payment by the
Mortgagor of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan, and the related Mortgagor's payments made for the
reasonable costs and expenses associated with the defeasance or assumption of a
Mortgage Loan are insufficient and cause the Trust to incur an Additional Trust
Expense in an amount equal to such reasonable costs and expenses not paid by
such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within
90 days of the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. The parties hereto acknowledge that such
reimbursement shall be Seller's sole obligation with respect to the breach
discussed in the previous sentence.
5.13 The Pooling and Servicing Agreement shall provide that Trustee (or
Master Servicer or Special Servicer on its behalf) shall give written notice
promptly (but in any event within three Business Days) to Seller of its
discovery of any Material Document Defect or Material Breach and prompt written
notice to Seller in the event that any Mortgage Loan becomes a Specially
Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
19
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by Trustee of the Purchase Price
therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage
Loan documents with respect to such Mortgage Loan, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to Trustee
shall be endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan, in each
case without recourse, including any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policies with respect thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00
a.m., New York time, on the Closing Date. The closing shall be subject to each
of the following conditions:
6.1.1 All of the representations and warranties of Seller and
Purchaser specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date, provided that any representations and warranties
made as of a specified date shall be true and correct as of such specified date
(to the extent of the standard, if any, set forth in each representation and
warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such
forms as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser
and its affiliates pursuant to Section 3 hereof shall be satisfactory to
Purchaser and its affiliates in their sole determination and the parties shall
have agreed to the form and contents of Seller's Information to be disclosed in
the Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
20
6.1.8 No Underwriter shall have terminated the Underwriting Agreement
and none of the Initial Purchasers shall have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchasers
shall have suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage
Loans pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller
and dated the Closing Date, and upon which Purchaser and its successors and
assigns may rely, to the effect that: (i) the representations and warranties of
Seller in this Agreement are true and correct in all material respects on and as
of the Closing Date with the same force and effect as if made on the Closing
Date, provided that any representations and warranties made as of a specified
date shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization
and by-laws or other organizational documents.
7.4 A certificate of existence for Seller from the from the Comptroller of
the Currency dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated
the Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under the law of the United States
and has national banking power and authority to enter into and perform its
obligations under this Agreement.
21
7.6.2 This Agreement has been duly authorized, executed and delivered
by Seller.
7.6.3 No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by Seller
of the transactions contemplated by the terms of this Agreement except any
approvals as have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement
by Seller, nor the consummation by Seller of any of the transactions
contemplated by the terms of this Agreement (A) conflicts with or results in a
breach or violation of, or constitutes a default under, the organizational
documents of Seller, (B) to the knowledge of such counsel, constitutes a default
under any term or provision of any material agreement, contract, instrument or
indenture, to which Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) conflicts with or results in a breach or violation of any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over Seller or its assets, except
where in any of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation of the
transactions contemplated hereby by Seller or materially and adversely affect
its ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which Seller is a party, or
threatened against Seller, (a) asserting the invalidity of this Agreement or (b)
which materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of
Seller, enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
22
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 A "10b-5" opinion of counsel addressed to Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the Underwriters,
as to the disclosure provided by Seller to Purchaser in connection with the
Certificates.
7.8 An opinion of counsel addressed to Purchaser and the Underwriters, in
form reasonably acceptable to Purchaser and the Underwriters, that such
disclosure complies as to form with the applicable requirements of Regulation
AB. Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
7.9 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
7.10 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.11 An officer's certificate of Purchaser, dated as of the Closing Date,
with the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.12 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.13 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon
by Seller and Purchaser in a separate Letter of Understanding dated March 17,
2006.
9. NOTICES. All communications provided for or permitted hereunder shall be
in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee, or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to
Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx,
00
Xxx Xxxx, Xxx Xxxx 00000, Legal Department, Attention: Xxxxxxxx Xxxxx, Esq. (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at LaSalle Bank National Association, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
Xxxxxxx, fax number: (000) 000-0000.
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure
to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
25
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Managing Director
-----------------------------
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
26
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
---------------------------------------------------------------------------------------------------------------------------------
ORIGINAL REMAINING
MORTGAGE MORTGAGE CUT-OFF DATE TERM TO TERM
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY TO MATURITY
---------------------------------------------------------------------------------------------------------------------------------
6 LaSalle 000 XXX - Xxxxxxxx Xxxxxxxx Xxxx (II) $ 37,280,000 12/29/2005 120 118
7 LaSalle 000 XXX - Xxxxxxxx Xxxxxxxx Xxxx (II) $ 24,000,000 12/29/2005 120 118
8 LaSalle 0000 Xxxxxxxxx Xxxx Xxxxx (II) $ 10,939,000 12/29/2005 120 118
9 LaSalle 0000 Xxxxxxxx Xxxxxxx Xxxxx (II) $ 6,519,000 12/29/2005 120 118
10 LaSalle 0000 Xxxxxxxxx Xxxx Xxxxx (II) $ 6,320,000 12/29/2005 120 118
11 LaSalle 0000 Xxxxxxxx Xxxxxxx Xxxxx (II) $ 6,280,500 12/29/2005 120 118
12 LaSalle 0000 Xxxxxxxx Xxxxxxx Xxxxx (II) $ 5,406,000 12/29/2005 120 118
13 LaSalle 0000 Xxxxxxxx Xxxxxxx Xxxxx (II) $ 4,849,500 12/29/2005 120 118
14 LaSalle 0000 Xxxxxxxxx Xxxx Xxxxx (II) $ 4,000,000 12/29/2005 120 118
15 LaSalle 0000 Xxxxxxxx Xxxxxxx Xxxxx (II) $ 2,949,000 12/29/2005 120 118
16 LaSalle Flournoy - Vineyards (A) $ 28,600,000 12/21/2005 120 118
17 LaSalle Flournoy - Stoneridge Farms at the Xxxx Club (A) $ 25,600,000 12/21/2005 120 118
18 LaSalle Flournoy - Estancia at Vista Ridge (A) $ 22,350,000 12/21/2005 120 118
19 LaSalle Flournoy - Sandstone Creek (A) $ 21,200,000 12/21/2005 120 118
25 LaSalle One Nashville Place $ 58,000,000 11/30/2005 120 117
29 LaSalle Allstate Roanoke (V) $ 21,561,596 12/21/2005 120 118
30 LaSalle Allstate Charlotte (V) $ 20,163,404 12/21/2005 120 118
31 LaSalle Inland Shops at 5 $ 40,179,000 12/21/2005 60 58
32 LaSalle First Insurance Center $ 38,000,000 12/20/2005 120 118
34 LaSalle Centre East (VI) $ 13,095,000 12/14/2005 120 118
35 LaSalle Centre North (VI) $ 10,850,040 12/14/2005 120 118
36 LaSalle Centre North Shops (VI) $ 5,500,080 12/14/2005 120 118
37 LaSalle Southport Shops (VI) $ 3,679,920 12/14/2005 120 118
38 LaSalle German Church Shops (VI) $ 2,874,960 12/14/2005 120 118
39 LaSalle Inland Petsmart Distribution Center (B) $ 23,731,497 01/10/2006 60 59
40 LaSalle Inland Raytheon (B) $ 11,840,690 01/17/2006 60 59
44 LaSalle Inland BISYS Fund $ 30,245,000 05/12/2005 84 75
45 LaSalle Xxxxxx'x New World Headquarters $ 30,200,000 12/22/2005 120 118
00 XxXxxxx Xxxxxxxxxx Xxxxxxx MHC $ 24,080,000 01/11/2006 120 119
Sterling University Fountains Collegiate
53 LaSalle Residences $ 22,000,000 12/08/2005 120 118
00 XxXxxxx Xxxxxxx Center Buildings 7, 9 and 10 $ 20,800,000 01/11/2006 84 83
56 LaSalle XxXxxxxxx Place Apartments $ 20,000,000 09/08/2005 120 115
57 LaSalle Copper Beech Townhouses $ 20,000,000 09/21/2005 120 115
60 LaSalle Inland Citizens Property Insurance (C) $ 5,997,350 12/05/2005 60 58
61 LaSalle Inland Wickes Furniture (C) $ 5,432,557 12/06/2005 00 00
00 XxXxxxx Xxxxxx Xxxxxxxxxxx Xxxxx (X) $ 4,278,000 12/29/2005 60 58
63 LaSalle Inland Xxxxxxxxx College (C) $ 3,053,250 12/23/2005 60 58
68 XxXxxxx Xxxxxxx Run Apartments $ 18,000,000 12/30/2005 120 118
1-1
71 LaSalle Center Court Apartments $ 16,400,000 12/06/2005 120 118
73 LaSalle Hanover Portfolio - Merchant's Row (E) $ 9,040,000 01/05/2006 120 119
74 LaSalle Hanover Portfolio - 00 Xxxx Xxxxxx (E) $ 3,840,000 01/05/2006 120 119
75 LaSalle Hanover Portfolio - 0000 Xxxxxxxxxx Xxxxxx (E) $ 3,160,000 01/05/2006 120 119
76 LaSalle Cimarron MHP $ 16,000,000 12/01/2005 120 117
00 XxXxxxx Xxxx Xxxx Apartments $ 15,440,000 12/13/2005 120 118
00 XxXxxxx Xxxx Xxxxx Xxxxx $ 14,425,500 11/18/2005 60 57
82 LaSalle Xxxx - Village Center A-F $ 14,153,718 11/29/2005 120 117
00 XxXxxxx Xxxxx Xxxxxx $ 14,000,000 11/30/2005 120 117
85 LaSalle Portage Pointe Apartments $ 13,880,000 01/10/2006 120 119
89 LaSalle ABC Mini Storage - Airway (VIII) $ 5,687,944 12/28/2005 120 118
90 LaSalle ABC Mini Storage - Valley (VIII) $ 4,271,891 12/28/2005 120 118
91 LaSalle ABC Mini Storage- North (VIII) $ 3,330,493 12/28/2005 120 118
99 LaSalle Crossroads Professional Center $ 11,925,000 08/17/2005 120 114
102 LaSalle Xxxx - San Xxxx Offices $ 11,163,496 11/29/2005 120 117
104 LaSalle Xxxxxxxxx Apartments $ 10,975,552 12/29/2005 120 118
107 LaSalle K&G Dearborn $ 10,550,000 12/28/2005 120 118
117 LaSalle Humblewood Shopping Center $ 9,558,000 12/14/2005 60 58
000 XxXxxxx Xxxxx Xxxxx Apartments $ 9,250,000 01/06/2006 118 117
000 XxXxxxx Xxx Xxxxx Xxxxxxxx Xxxxx $ 8,977,497 12/30/2005 120 118
123 LaSalle Les Chateaux Apartments $ 8,750,000 12/22/2005 120 118
126 LaSalle Holiday Inn Ithaca $ 7,975,960 12/13/2005 84 82
129 LaSalle Xxxxx Square Apartments $ 7,850,000 11/10/2005 120 117
000 XxXxxxx Xxxxxxxx Xxxxxxx Apartments $ 7,522,542 12/02/2005 120 118
139 LaSalle Alum Rock Self Storage $ 7,050,000 12/21/2005 120 118
145 LaSalle 000 Xxxx Xxxxxx Xxxx $ 6,697,219 12/01/2005 120 117
000 XxXxxxx Xxxx Xxx Xxxxx $ 6,640,000 01/06/2006 120 119
149 LaSalle Wingover Apartments $ 6,285,221 12/06/2005 120 118
000 XxXxxxx Xxxx Xxxxx Shopping Center $ 6,136,597 12/15/2005 120 118
151 LaSalle Woodbridge II Apartments $ 6,100,240 12/01/2005 120 117
157 XxXxxxx Xxxx Place Office Building $ 5,960,000 12/21/2005 120 118
158 LaSalle 12200 Mount Xxxxx (X) $ 4,105,842 12/06/2005 120 118
159 LaSalle 000 Xxxxxxxx (X) $ 1,694,158 12/06/2005 120 118
160 XxXxxxx 000 Xxxxxxx $ 5,750,000 12/23/2005 120 118
163 LaSalle The Crest at Elon $ 5,300,000 09/27/2005 120 115
168 LaSalle Hartwood Apartments $ 5,189,139 12/22/2005 120 118
000 XxXxxxx Xxxxxxx Xxxx Apartments $ 4,988,686 12/09/2005 120 118
176 LaSalle Best Western Southbay $ 4,953,018 08/31/2005 120 114
000 XxXxxxx Xxx Xxxxxxx Xxxxxx $ 4,809,039 12/30/2005 120 118
000 XxXxxxx Xxxxx Xxxxx Apartments $ 4,808,000 01/05/2006 120 119
183 LaSalle Suburban Extended Stay - Orlando $ 4,581,285 11/18/2005 120 117
184 LaSalle Inland Ridge Tool $ 4,543,000 01/13/2006 60 59
186 LaSalle Xxxx - Village Center G-I $ 4,485,333 11/29/2005 120 117
000 XxXxxxx X&X Xxx Xxxxxx $ 4,450,000 12/28/2005 120 118
191 LaSalle Campus Courtyard I & II $ 4,447,456 11/21/2005 120 117
192 LaSalle FAMSA Retail Building $ 4,435,860 12/05/2005 120 118
193 LaSalle U-Stor Self Storage $ 4,430,260 12/12/2005 120 118
194 LaSalle Blazing Star MHP & RV Resort $ 4,400,000 11/18/2005 120 117
1-2
195 LaSalle Social Security Administrative Building (XI) $ 1,511,161 12/01/2005 120 117
196 LaSalle Dollar General - Xxxxx (XI) $ 681,960 12/01/2005 120 117
197 LaSalle Dollar General - Brodhead (XI) $ 581,216 12/01/2005 120 117
198 LaSalle 0000 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx (XI) $ 573,466 12/01/2005 120 117
199 LaSalle Dollar General - Xxxxxx (XI) $ 526,969 12/01/2005 120 117
200 LaSalle Dollar General - NH (XI) $ 511,470 12/01/2005 120 117
203 LaSalle 00000 Xxxxx Xxxxxxxxx $ 4,250,000 05/12/2005 132 123
209 LaSalle Rockwood Landing $ 4,096,017 10/11/2005 60 56
000 XxXxxxx Xxxxxxxxx - Xxxxxx, XX $ 4,049,565 01/06/2006 120 119
213 XxXxxxx Xxxxx Lake Apartments $ 3,990,889 12/02/2005 120 118
000 XxXxxxx Xxx Xxxx Office $ 3,592,167 12/12/2005 120 118
221 LaSalle Commerce Plaza One $ 3,577,162 12/22/2005 120 118
222 LaSalle 00 Xxxxxxxx Xxxxxx Office $ 3,517,516 12/16/2005 120 118
227 LaSalle Walgreens-Sterling Heights (MI) $ 3,367,388 12/18/2005 120 118
000 XxXxxxx Xxxxx Xxxxxx Commons $ 3,350,000 01/06/2006 84 83
233 LaSalle Albertson's & Coffee Bean Retail $ 3,092,893 12/15/2005 120 118
000 XxXxxxx Xxxxxxxxx $ 2,900,000 12/16/2005 120 118
240 LaSalle AAA Lufkin Self Storage $ 2,893,555 12/30/2005 120 118
242 LaSalle Grand Villa Apartments $ 2,873,713 12/09/2005 120 118
245 LaSalle Creekside Apartments $ 2,800,000 11/23/2005 120 117
000 XxXxxxx 00000 Xxxxx Xxxxxxx $ 2,753,886 12/06/2005 120 118
000 XxXxxxx Xxxxxxxxxx Medical Office $ 2,649,336 11/01/2005 120 116
254 LaSalle Xxxx Apts & Broadway Apts $ 2,624,000 11/30/2005 120 117
256 LaSalle Concord Village Apartments $ 2,600,000 01/05/2006 120 119
258 LaSalle Sterling Xxxxxx- Xxxxxx 00 $ 2,540,000 12/29/2005 120 118
263 LaSalle 00-00 Xxxxxx Xxxxxx $ 2,469,589 12/02/2005 60 58
000 XxXxxxx Xxxxxxxxx Apartments $ 2,376,000 11/30/2005 120 117
267 LaSalle Bellmawr Self Storage $ 2,344,638 12/30/2005 120 118
271 LaSalle StorageMax - Princeton $ 2,243,110 11/30/2005 120 117
276 XxXxxxx Xxxx Village Phase I $ 2,089,129 09/20/2005 120 115
000 XxXxxxx Xxxx Xxxxxxxxx Xxxx Center $ 1,995,712 12/27/2005 120 118
279 LaSalle Xxxxxxx Self Storage $ 1,972,951 09/29/2005 120 115
280 LaSalle SBC - Xxx Arbor $ 1,970,516 12/05/2005 120 118
281 LaSalle Country Living MHP $ 1,941,247 12/12/2005 120 118
283 LaSalle West 10th Place Industrial Building $ 1,900,000 11/23/2005 120 117
285 LaSalle Casaloma Retail Center $ 1,895,839 12/15/2005 120 118
286 LaSalle North Xxxxxx Self Storage $ 1,891,612 12/01/2005 120 117
287 LaSalle La Porte Self Storage $ 1,840,000 12/30/2005 120 118
000 XxXxxxx Xxxx Xxxxxxxxxx Plaza $ 1,796,141 12/21/2005 120 118
000 XxXxxxx Xxxxxx - Xxxxxxxx Xxxx, XX $ 1,794,194 12/16/2005 120 118
291 LaSalle Walgreens - San Antonio $ 1,661,189 12/30/2005 120 118
292 LaSalle Betta Stor It $ 1,597,115 01/23/2006 120 119
293 LaSalle Plainview Apartments $ 1,594,863 11/10/2005 120 117
295 LaSalle 0000-0000 Xxxxx Xxxxx Xxxxxx $ 1,496,758 12/20/2005 120 118
000 XxXxxxx Xxxxxxx Xxxxxx $ 1,496,752 12/29/2005 120 118
297 LaSalle Magnolia Self Storage $ 1,445,492 11/18/2005 120 117
298 LaSalle Winterville Mini Storage (XII) $ 653,658 11/10/2005 120 117
299 LaSalle Medical Park Mini Storage (XII) $ 395,547 11/10/2005 120 117
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300 LaSalle Havelock West Self Storage (XII) $ 345,265 11/10/2005 120 117
301 LaSalle Studio 15 - Omaha $ 1,376,933 12/28/2005 120 118
304 LaSalle Vanderbilt University $ 1,200,000 12/29/2005 120 118
000 XxXxxxx Xxxxxxxx Xxxxxx $ 1,051,435 12/20/2005 120 118
308 LaSalle Xxxxxxx Commons $ 998,660 01/05/2006 120 119
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to Purchaser of the Mortgage Loans, Seller had good title to, and
was the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. Upon the
consummation of the transactions contemplated by this Agreement, Seller will
have validly and effectively conveyed to Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance. The sale of the Mortgage Loans
to Purchaser or its designee does not require Seller to obtain any governmental
or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the Title Insurance Policy, (c) exceptions and exclusions specifically referred
to in such Title Insurance Policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c) or
(d), individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of Trustee
is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related
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Mortgagor's personal property used in, and reasonably necessary to operate, the
related Mortgaged Property. In the case of a Mortgaged Property operated as a
hotel or an assisted living facility, the Mortgagor's personal property includes
all personal property that a prudent mortgage lender making a similar Mortgage
Loan would deem reasonably necessary to operate the related Mortgaged Property
as it is currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in such personal property, to the extent a security interest
may be so created therein, and such security interest is a first priority
security interest, subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such personal
property and any Permitted Encumbrances. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below and
any Permitted Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to occupy,
use or possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases not included in a Mortgage
has been executed and delivered in favor of Trustee and is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest in,
to and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since March 3, 2006.
7. Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property
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is, to Seller's knowledge, free and clear of any damage (or adequate reserves
therefor have been established based on the engineering report) that would
materially and adversely affect its value as security for the related Mortgage
Loan, and (ii) with respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an engineering report within 18 months prior
to the Cut-Off Date as set forth on Schedule A to this Exhibit 2, each Mortgaged
Property is in good repair and condition and all building systems contained
therein are in good working order (or adequate reserves therefor have been
established) and each Mortgaged Property is free of structural defects, in each
case, that would materially and adversely affect its value as security for the
related Mortgage Loan as of the date hereof. Seller has received no notice of
the commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, (x)
all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the Title Policy referred
to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, (y) no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy or
a pro forma or marked-up title insurance commitment (on which the required
premium has been paid) which evidences such title insurance policy (the "Title
Policy") in the original principal amount of the related Mortgage Loan after all
advances of principal. Each Title Policy insures that the related Mortgage is a
valid first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of Trustee without the consent
of, or notice to, the insurer. To Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
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10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2,
with respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental
site assessment within 18 months prior to the Cut-Off
Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was
performed with respect to each Mortgaged Property in
connection with the origination or the sale of the
related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an
"Environmental Report") has been delivered to Purchaser,
and Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such
Environmental Report. Each Mortgage requires the related
Mortgagor to comply with all applicable federal, state
and local environmental laws and regulations. Where such
Environmental Report disclosed the existence of a
material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a
party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance or
(ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is
remediated or (iii) the related Mortgagor was required
either to provide additional security that was deemed to
be sufficient by the originator in light of the
circumstances and/or to establish an operations and
maintenance plan. In connection with the origination of
each Mortgage Loan, each environmental consultant has
represented in such Environmental Report or in a
supplement letter that the environmental assessment of
the applicable Mortgaged Property was conducted
utilizing generally accepted Phase I industry standards
using the American Society for Testing and Materials
(ASTM) standards. Each Mortgage Loan set forth on
Schedule C to this Exhibit 2 (each, a "Schedule C Loan")
is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C
(the "Policy Issuer")
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and effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to
this Exhibit 2, with respect to each Schedule C Loan,
(i) to Seller's knowledge, the Environmental Insurance
Policy is in full force and effect, (ii)(a) a property
condition or engineering report was prepared with
respect to lead based paint ("LBP") and radon gas ("RG")
at each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing
materials ("ACM") at each related Mortgaged Property and
(b) if such report disclosed the existence of a material
and adverse LBP, ACM or RG environmental condition or
circumstance affecting the related Mortgaged Property,
the related Mortgagor (A) was required to remediate the
identified condition prior to closing the Mortgage Loan
or provide additional security, or establish with the
lender a reserve from loan proceeds, in an amount deemed
to be sufficient by Seller for the remediation of the
problem and/or (B) agreed in the Mortgage Loan documents
to establish an operations and maintenance plan after
the closing of the Mortgage Loan, (iii) on the effective
date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM
or RG) that was not disclosed to the Policy Issuer in
one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was
provided to the Policy Issuer or (c) an engineering or
other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been
paid through the maturity of the policy's term and the
term of such policy extends at least five years beyond
the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an
environmental site assessment prepared to ASTM standards
within 18 months prior to the Cut-Off Date as set forth
on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that
(1) the value, use or operation of such Mortgaged
Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such
Hazardous Material could be required to be eliminated at
a cost materially and adversely affecting the value of
the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred
or (b) the presence of such Hazardous Material could
(upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein,
to liability for the cost of eliminating such Hazardous
Material or the hazard created thereby at a cost
materially and adversely affecting the value of the
Mortgaged Property, and (ii) such Mortgaged Property is
in material compliance with all applicable federal,
state and local laws pertaining to Hazardous Materials
or environmental
2-5
hazards, any noncompliance with such laws does not have
a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge,
the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation
of any such law.
"Hazardous Materials" means gasoline, petroleum
products, explosives, radioactive materials,
polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be
defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance,
rule, regulation or order, including without limitation,
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. XX.XX.
9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. XX.XX. 6901 et seq.), the
Resource Conservation and Recovery Act, as amended (42
U.S.C. XX.XX. 6901 et seq.), the Federal Water Pollution
Control Act as amended (33 U.S.C. XX.XX. 1251 et seq.),
the Clean Air Act (42 U.S.C. XX.XX. 1251 et seq.) and
any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of Leases
and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor or any guarantor of any
non-recourse exceptions and environmental liability is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the improvements located at the
Mortgaged Property, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and the policy contains no provisions for a deduction for depreciation; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to twelve months of operations of the Mortgaged Property estimated as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices; (c) a flood insurance policy (if
any portion of
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buildings or other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards and the Federal Emergency Management Agency requires flood insurance to
be maintained); and (d) a comprehensive general liability insurance policy in
amounts as are generally required by commercial mortgage lenders for properties
of similar types and in any event not less than $1 million per occurrence. Each
insurance policy contains a standard mortgagee clause that names the mortgagee
as an additional insured in the case of liability insurance policies and as a
loss payee in the case of property insurance policies and requires prior notice
to the holder of the Mortgage of termination, reduction of coverage or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage obligates the
related Mortgagor to maintain all such insurance and, upon such Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement therefor
from such Mortgagor. Each Mortgage provides that casualty insurance proceeds
will (or at the lender's option will) be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or repair of
the related Mortgaged Property, with any excess insurance proceeds after
restoration or repair being paid to the Mortgagor, or (c) to the reduction of
the principal amount of the Mortgage Loan. For each Mortgaged Property located
in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which indicated
a PML of less than 20% was prepared, based on a 450 or 475-year lookback with a
10% probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent
or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor
in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease" which term shall include any related
estoppel letter or lender protection agreement between Seller and related
lessor), by the related Mortgagor's interest in the Ground Lease but not by the
related fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease (or the related
estoppel letter or lender protection agreement between
Seller and related lessor) does not prohibit the current
use of the Mortgaged Property and does not prohibit the
interest of the lessee thereunder to be encumbered by
the related
2-7
Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination
of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that
are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or of
equal priority with, the related Mortgage, other than
Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is
assignable to Purchaser and Trustee as its assignee upon
notice to, but without the consent of, the lessor
thereunder (or, if such consent is required for
assignment to Purchaser, it has been obtained prior to
the Closing Date) and is further assignable by Purchaser
and its successors and assigns upon notice to, but
without the need to obtain the consent of, such lessor
or if such lessor's consent is required it either has
been obtained or it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, the
Ground Lease provides that no material amendment to such
Ground Lease is binding on a mortgagee unless the
mortgagee has consented thereto, Seller has received no
notice that an event of default has occurred thereunder,
and, to Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of
notice, or both, would result in an event of default
under the terms of such Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such
Ground Lease to give notice of any default by the lessee
to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a
copy of such notice has been delivered to such holder
and the lessor has offered or is required to enter into
a new lease with such holder on terms that do not
materially vary from the economic terms of the Ground
Lease.
(vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not
less than twenty years beyond the Maturity Date of the
related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds
or condemnation award awarded
2-8
to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by the related Mortgage
having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold
and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by prudent commercial mortgage lenders
lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such
Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an
uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason,
or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a
new lease upon termination of such Ground Lease if the
Ground Lease is rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
2-9
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or is
exempt from) all applicable usury laws and any other applicable material laws in
effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. SS.1.1001-3 and (b) would not cause such Mortgage Loan to
fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of
the Code. The loan documents require the related Mortgagor to bear the cost of
such opinion.
2-10
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or shared appreciation feature
or provides for negative amortization (except that the ARD Loan may provide for
the accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property. Neither Seller nor any
affiliate thereof has any obligation to make a capital contribution to the
Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller elsewhere in this Exhibit 2 or the exceptions listed in Schedule A
attached hereto.
28. Inspections. Seller (or if Seller is not the originator, the originator
of the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. Seller has no knowledge that any
of the Mortgaged Properties is encumbered by any lien (other than a Permitted
Encumbrance) junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are
no actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
2-11
32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence that
it customarily performs in the origination of comparable mortgage loans, as of
the date of origination of each Mortgage Loan or as of the date of the sale of
the related Mortgage Loan by Seller hereunder, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED LIVING
FACILITY].
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
2-12
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until
the date that is at least two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Authorized to do Business. To the extent required under applicable law
as of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
42. Prepayment Premiums. As of the applicable date of origination of each
such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2).
43. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$17,500,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans,
2-13
the related Mortgage Loan documents do not waive or prohibit the mortgagee from
requiring coverage for acts of terrorism or damages related thereto, except to
the extent that any right to require such coverage may be limited by
commercially reasonable availability, or as otherwise indicated on Schedule A.
44. Operating Statements and Rent Rolls. In the case of each Mortgage Loan,
the related Mortgage Loan documents require the related Mortgagor, in some cases
at the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except in
certain cases if the Mortgage Loan has an outstanding principal balance of less
than or equal to $3,500,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases, the Mortgage Loan
documents require the Mortgagor, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Mortgagor
annually), and such other information as may be required therein.
45. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a) (but without regard to the rule in Treasury Regulation Sections
1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as a
qualified mortgage, or any substantially similar provision).
46. No Fraud in Origination. A court of competent jurisdiction will not
find, in a final non-appealable judgment, that an employee of Seller actively
participated with the Borrower in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Borrower is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
48. Foreclosure Property. Seller is not selling any Mortgage Loan as part of
a plan to transfer the underlying Mortgaged Property to Purchaser, and Seller
does not know or, to Seller's knowledge, have reason to know that any Mortgage
Loan will default. The representations in this paragraph 48 are made solely for
the purpose of determining whether the Mortgaged Property, if acquired by the
Trust, would qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, and may not be relied upon or used for any other
purpose. Such representations shall not be construed as a guarantee to any
degree that defaults or losses will not occur.
49. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots containing no other property, or is subject to an endorsement
under the related Title Policy insuring same, or an application for the creation
of separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made
2-14
and approved by the applicable governing authority and such tax lots shall be
effective for the next tax year.
2-15
Schedule A to Exhibit 2
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES*
Exceptions to Representation (6)
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Loans Exceptions
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Hampton Park Apartments The Cash Management Agreement was terminated.
Exceptions to Representation (12)
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Loans Exceptions
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East Bay Plaza There is contamination in the soil caused by a dry
cleaner and there was a prior spill at the site
caused by a gas station. There is $117,923.00 in
escrow under the Environmental Escrow Agreement for
continuing remediation at the Property. There is a
restrictive covenant recorded against the Property in
favor of the state restricting the use of groundwater
at the site or any further construction.
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Exceptions to Representation (14)
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Loans Exceptions
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Walgreens - Poland Walgreens Co. currently self-insures the property
Walgreens - San Antonio (standard for Walgreen's loans under LaSalle's
Walgreens - Sterling Heights lending program).
------------------------------------------------------------------------------------------------------
Xxxxxx - Xxxxxxxx City Eckerd Co. currently self-insures the property
(standard for Eckerd's loans under LaSalle's lending
program).
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___________________________
* Seller has attempted to indicate the particular representation or
warranty (by reference to the Section in which such representation or warranty
appears) to which an exception primarily relates. Notwithstanding the foregoing,
each exception is intended to qualify each representation or warranty to which
it may relate, regardless whether such exception expressly refers to the Section
in which the applicable representation or warranty appears.
For purposes of the MLPA and Exhibit 2 - Representations and Warranties of
Seller, Seller deems the term "commercial and multifamily" to include
manufactured housing communities.
In addition, all mortgage loan assignments and UCC financing statements
assignments were executed in favor of the Trustee and not the Purchaser.
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Country Living MHP Special Guaranty Related to Insurance Coverage. At
the time of Closing, Borrower did not have
property/casualty insurance in an amount sufficient
to satisfy Lender's customary requirements regarding
replacement cost (Borrower disputed the need to
insure the certain permanent improvements for this
manufactured housing community). Borrower's
Principal, Xxxxxxx Xxxxxxx, executed a Special
Guaranty to protect Lender from any and all loss,
liability, damage, cost, expense, claim or other
obligation (including, without limitation, reasonable
attorney's fees and costs of defense) incurred or
suffered by Lender and arising out of or in
connection with Borrower's failure to obtain and
maintain Property/Casualty Insurance as and in the
amount, required by Lender.
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Exceptions to Representation (25)
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Loans Exceptions
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Fox Plaza Shopping Plaza Release is permitted without payment. The permitted
release is of two unimproved parcels.
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Inland Xxxxxxxxx College The related borrower can prepay any of the four loans
Inland Citizens Property Insurance and release the cross-collateralization with respect
Inland Stonebridge Plaza to the relative property if the related borrower pays
Inland Wickes Furniture the outstanding principal balance of the loan, among
other conditions.
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Inland Raytheon The related borrower can prepay either of the loans
Inland Petsmart Distribution Center and release the cross-collateralization with respect
to the relative property if the related borrower pays
the outstanding principal balance of the loan, among
other conditions.
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Exceptions to Representation (29)
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Loans Exceptions
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XxXxxxxxx Place The zoning letter does not state whether the property
is legally conforming. Borrower is in the process of
obtaining a PZR report to determine if the property
is conforming or not. A non-recourse carveout was
added in the event Borrower is unable to rebuild the
Property as currently constituted because of the
failure of the Property to be legally conforming
under applicable zoning and building laws and
ordinances in effect on the date of closing, but only
to the extent such losses are not covered by law and
ordinance insurance.
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Exceptions to Representation (31)
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Loans Exceptions
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One Nashville Place The sponsor for the mortgage loan is Triple Net
Properties, LLC ("Triple Net") and it's affiliate
Triple Net Properties Realty, Inc., is the property
manager for the related mortgaged property. Triple
Net has advised each related mortgage loan seller
that the SEC has opened an investigation regarding
certain of its activities (and the activities of
certain of it's affiliates). In its filing with the
SEC, T REIT, Inc. an affiliate of Triple Net,
indicated that the SEC has requested information
relating to disclosure in securities offerings and
exemptions from the registration requirements of the
Securities Act of 1933, as amended, for the private
offerings in which Triple Net and its affiliated
entities were involved and exemptions from the
registration requirements of the Securities Exchange
Act of 1934, as amended for several entities. In
addition, the SEC has requested financial information
regarding real estate investment trusts and other
companies advised by Triple Net. In recent filings
with the SEC, T REIT, Inc. indicated that the
information disclosed in connection with these
securities offerings relating to the prior
performance of all public and non-public investment
programs sponsored by Triple Net contained certain
errors. T REIT, Inc. reported that these errors
included the following: (i) the prior performance
tables included in the offering documents were stated
to be presented on a GAAP basis but generally were
not, (ii) a number of prior performance data figures
were themselves erroneous, even as presented on a tax
or cash basis, and (iii) with respect to certain
programs sponsored by Triple Net, where Triple Net
invested either alongside or in other programs
sponsored by Triple Net, the nature and results of
these investments were not fully and accurately
disclosed in the tables resulting in an overstatement
of Triple Net's program and aggregate portfolio
operation results.
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Exceptions to Representation (33)
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Loans Exceptions
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East Cleveland Town Center Certificate of Occupancy for Xxxxxxx Xxxxxx. The City
of East Cleveland could locate no record that a
Certificate of Occupancy has been issued for Tenant
Tax Service of America, Ind. ("Xxxxxxx Xxxxxx"). In
conjunction with the inspection required by the city
with respect to the transfer of property ownership,
or otherwise within 60 days of the date of
origination, Borrower was required in the Post
Closing Agreement to use its best efforts to obtain
an unconditional Certificate of Occupancy for the
premises occupied by Xxxxxxx Xxxxxx. To the extent
that any repairs or renovations are required in order
to obtain the Certificate of Occupancy, Borrower is
required to undertake those repairs or take any other
action required by the City to obtain the Certificate
of Occupancy. As part of a Special Guaranty executed
at closing, Borrower and Guarantor shall indemnify
Lender from any loss, damage or claim arising from or
related to the failure to obtain the Xxxxxxx Xxxxxx
Certificate of Occupancy, as further described in the
Special Guaranty; however, the failure to obtain the
Xxxxxxx Xxxxxx Certificate of Occupancy shall not be
an event of Default.
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Exceptions to Representation (36)
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Loans Exceptions
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Portage Point Apartments Future mezz. debt is permitted in accordance with
Hanover Portfolio - 00 Xxxx Xxxxxx the terms of the loan.
Hanover Portfolio - 0000 Xxxxxxxxxx Xxxxxx
River Market
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Xxxxxxx Star MHP & RV Resort Borrower is permitted to obtain secondary financing
secured by a deed of trust against the Property.
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Exceptions to Representation (38)
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Loans Exceptions
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Sterling Pointe Shopping Center - Parcel 10 Borrower is a revocable living trust, and the
Principal is the individual trustee and settlor of
such trust. Under California law in this situation
the Borrower and the Principal will be seen as alter
egos of each other, and Lender will not be able to
obtain a deficiency judgment against the Principal
after collecting from the Borrower.
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ELS- Cimarron MHP There is no natural person guaranteeing the
Allstate - Charlotte & Roanoke non-recourse carveouts.
Inland Shops at 5
Inland Xxxxxxxxx College
Inland Citizens Property Insurance
Inland Wickes Furniture
Inland Ridge Tool
Inland Raytheon
Inland Petsmart Distribution Center
Inland Humblewood Shopping Center
Inland Stonebridge Plaza
Inland Duck Creek Plaza
Inland BISYS Fund
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Blazing Star MHP & RV Resort The Guarantor is not liable for the non-recourse
environmental carveouts.
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Exceptions to Representation (40)
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Loans Exceptions
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COPT Office Portfolio Permits partial defeasance.
Xxxx Apartments & Broadway Apartments
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Xxxxxxxx Apartment Portfolio Individual loans may be severed and defeased under
certain conditions.
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Centre North, East & Southport Shops The loan documents permit partial defeasance.
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Hanover Portfolio - Merchant's Row The Note permits the defeasance of the Loan without
Hanover Portfolio - 00 Xxxx Xxxxxx defeasing the other cross defaulted loans.
Hanover Portfolio - 0000 Xxxxxxxxxx Xxxxxx
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Exceptions to Representation (43)
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U-Stor Self Storage Borrower's current policy of property insurance does
not provide terrorism coverage currently required by
Lender's insurance requirements. Lender has agreed to
waive its terrorism insurance requirements until the
end of Borrower's current insurance policy term, at
which time Borrower shall obtain the required
terrorism coverage and any other coverage necessary
to fully comply with the loan documents. The
non-recourse carveouts were modified to provide for
liability to Borrower and Guarantor for any loss,
damage or claim related to any act or acts of
terrorism in the event the insurance coverage for the
property does not include coverage for acts of
terrorism.
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ELS - Cimarron MHP No terrorism insurance was required.
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Inland Ridge Tool Under certain circumstances, Borrower is permitted to
Inland Wickes Furniture self-insure provided that if Borrower self-insures
Inland Citizens Property Insurance for terrorism, losses resulting from terrorism must
Inland Shops at 5 be guaranteed by an entity with a net worth of at
Inland Xxxxxxxxx College least $400,000,000, among other things.
Inland Raytheon,
Inland Petsmart Distribution Center
Inland Humblewood Shopping Plaza
Inland Stonebridge Plaza
Inland Duck Creek Plaza
Inland BISYS Fund
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Schedule B to Exhibit 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
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MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE
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16 LaSalle Flournoy - Vineyards (A) $28,600,000
17 LaSalle Flournoy - Stoneridge Farms at the Xxxx Club (A) $25,600,000
00 XxXxxxx Xxxxxxxx - Xxxxxxxx xx Xxxxx Xxxxx (X) $22,350,000
00 XxXxxxx Xxxxxxxx - Xxxxxxxxx Xxxxx (A) $21,200,000
39 LaSalle Inland Petsmart Distribution Center (B) $23,731,497
40 LaSalle Inland Raytheon (B) $11,840,690
60 LaSalle Inland Citizens Property Insurance (C) $5,997,350
61 LaSalle Inland Wickes Furniture (C) $5,432,557
62 LaSalle Inland Stonebridge Plaza (C) $4,278,000
63 LaSalle Inland Xxxxxxxxx College (C) $3,053,250
00 XxXxxxx Xxxxxxx Xxxxxxxxx - Xxxxxxxx'x Xxx (E) $9,040,000
74 LaSalle Hanover Portfolio - 00 Xxxx Xxxxxx (E) $3,840,000
75 LaSalle Hanover Portfolio - 0000 Xxxxxxxxxx Xxxxxx (E) $3,160,000
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MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER BORROWER NAME SPONSOR
-----------------------------------------------------------------------------------------------------
00 XxXxxxx Xxxxxxx Vineyards, LP Xxxx X. Xxxxxxxx
17 LaSalle Stoneridge Farms At The Xxxx Club, LLC Xxxx X. Xxxxxxxx
18 LaSalle Dallas Estancia At Vista Ridge, L.P. Xxxx X. Xxxxxxxx
00 XxXxxxx Xxxxxxxxx Xxxxx Apartments, LLC Xxxx X. Xxxxxxxx
00 XxXxxxx Xxxxxx Xxxxxxx Xxxxxx Dayton, L.L.C. Inland Western Retail Real Estate Trust, Inc.
Inland Western State College Science
40 LaSalle Park DST Inland Western Retail Real Estate Trust, Inc.
Inland Western Jacksonville
60 LaSalle Southpoint, L.L.C. Inland Western Retail Real Estate Trust, Inc.
Inland Western Murrieta Avenida
61 LaSalle Acacias, L.L.C. Inland Western Retail Real Estate Trust, Inc.
Inland Western XxXxxxxx Stonebridge
62 LaSalle Limited Partnership Inland Western Retail Real Estate Trust, Inc.
Inland Western Brooklyn Park 93rd
00 XxXxxxx Xxxxxx, X.X.X. Xxxxxx Western Retail Real Estate Trust, Inc.
73 LaSalle Washington 2053, LLC Xxxxx X. Xxxxxxxxxx
74 LaSalle HWMC, LLC Xxxxx X. Xxxxxxxxxx
75 LaSalle Washington 2100, LLC Xxxxx X. Xxxxxxxxxx
Schedule C to Exhibit 2
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $ 2,710,626,582
Less Expenses ($5,418,602)
---------------
Net Proceeds $ 2,705,207,980
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $ 1,127,301,958
Allocable Expense Amount for LaSalle Loans ($2,125,929)
---------------
Purchase Price of LaSalle Loans $ 1,125,176,029
Less Purchase Price of MS Loans
Discounted Value of MS Loans $ 1,583,323,721
Allocable Expense Amount for MS Loans ($3,292,674)
---------------
Purchase Price of MS Loans $ 1,580,031,048
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: LaSalle Bank National Association
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of March 17, 2006 (the "Mortgage Loan Purchase Agreement"),
between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3
to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this ___ day of March 2006.
SELLER: LASALLE BANK NATIONAL ASSOCIATION.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Title: Managing Director
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PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
------------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO U.S. BANK NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-HQ8
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of March 17, 2006 (the "Mortgage Loan Purchase Agreement"), between
LaSalle Bank National Association ("LaSalle") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), LaSalle is selling certain multifamily and commercial mortgage
loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), between the
Depositor, Xxxxx Fargo Bank National Association, as Master Servicer, X.X.
Xxxxxx Company, Inc. ("JER") as Special Servicer, LaSalle Bank National
Association, as Paying Agent and Certificate Registrar and U.S. Bank National
Association ("U.S. Bank") as Trustee, the Trustee and the Special Servicer are
granted certain powers, responsibilities and authority in connection with the
completion and the filing and recording of assignments of mortgage, deeds of
trust or similar documents, Form UCC-2 and UCC-3 assignments of financing
statements, reassignments of assignments of leases, rents and profits and other
Mortgage Loan documents required to be filed or recorded in appropriate public
filing and recording offices;
WHEREAS, LaSalle has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, LaSalle does hereby make, constitute and appoint U.S.
Bank, acting solely in its capacity as Trustee under, and in accordance with the
terms of, the Pooling and Servicing Agreement, LaSalle's true and lawful agent
and attorney-in-fact with respect to each Mortgage Loan in LaSalle's name, place
and stead: (i) to complete (to the extent necessary) and to cause to be
submitted for filing or recording in the appropriate public filing or recording
offices, all assignments of mortgage, deeds of trust or similar documents,
assignments or reassignments of rents, leases and profits, in each case in favor
of the Trustee, as set forth in the definition of "Mortgage File" in Section 1.1
of the Pooling and Servicing Agreement, that have been received by the Trustee
or a Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of
financing statements and all other comparable instruments or documents with
respect to the Mortgage Loans which are customarily and reasonably necessary or
appropriate to assign agreements, documents and instruments pertaining to the
Mortgage Loans, in each case in favor of the Trustee as set forth in the
definition of "Mortgage File" in, and in accordance with Section 1.1 of, the
Pooling and Servicing Agreement, and to evidence, provide notice of and perfect
such assignments and conveyances in favor of the Trustee in the public records
of the appropriate filing and recording offices; and (ii) to file or record in
the appropriate public filing
5-1
or recording offices, all other Mortgage Loan documents to be recorded under the
terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents
which have not been submitted for filing or recordation by LaSalle on or before
the date hereof or which have been so submitted but are subsequently lost or
returned unrecorded or unfiled as a result of actual or purported defects
therein, in order to evidence, provide notice of and perfect such documents in
the public records of the appropriate filing and recording offices.
Notwithstanding the foregoing, this Limited Power of Attorney shall grant to
U.S. Bank and JER only such powers, responsibilities and authority as are set
forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
LaSalle does also hereby make, constitute and appoint JER, acting solely
in its capacity as Special Servicer under the Pooling and Servicing Agreement,
LaSalle's true and lawful agent and attorney-in-fact with respect to the
Mortgage Loans in LaSalle's name, place and stead solely to exercise and perform
all of the rights, authority and powers of U.S. Bank as set forth in the
preceding paragraph in the event of the failure or the incapacity of U.S. Bank
to do so for any reason. As between JER and any third party, no evidence of the
failure or incapacity of U.S. Bank shall be required and such third party may
rely upon JER's written statement that it is acting pursuant to the terms of
this Limited Power of Attorney.
17.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as LaSalle's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as LaSalle might or could do if personally present, hereby ratifying
and confirming whatsoever such attorney-in-fact shall and may do by virtue
hereof; and LaSalle agrees and represents to those dealing with such
attorney-in-fact that they may rely upon this Limited Power of Attorney until
termination thereof under the provisions of Article III below. As between
LaSalle, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Trust Fund and the Certificateholders, neither the Trustee nor the Special
Servicer may exercise any right, authority or power granted by this Limited
Power of Attorney in a manner which would violate the terms of the Pooling and
Servicing Agreement, but any and all third parties dealing with either the
Trustee or the Special Servicer as LaSalle's attorney-in-fact may rely
completely, unconditionally and conclusively on the authority of the Trustee or
the Special Servicer, as applicable, and need not make any inquiry about whether
the Trustee or the Special Servicer is acting pursuant to the Pooling and
Servicing Agreement. Any purchaser, title insurance company or other third party
may rely upon a written statement by either the Trustee or the Special Servicer
that any particular Mortgage Loan or related mortgaged real property in question
is subject to and included under this Limited Power of Attorney and the Pooling
and Servicing Agreement.
18.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on LaSalle and LaSalle's successors and
assigns.
19.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
19.1 with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
19.2 with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
19.3 with respect to the Trustee, the appointment of a receiver or
conservator with respect to the business of the Trustee, or the
filing of a voluntary or involuntary petition in bankruptcy by or
against the Trustee;
19.4 with respect to the Special Servicer, the appointment of a receiver
or conservator with respect to the business of the Special Servicer,
or the filing of a voluntary or involuntary petition in bankruptcy
by or against the Special Servicer;
19.5 with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
19.6 with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance
with its terms; and
19.7 with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to
the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of LaSalle under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
20.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
21.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, LaSalle has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
March 28, 2006.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
ACKNOWLEDGEMENT
STATE OF Illinois)
) ss:
COUNTY OF Xxxx )
On this 28th day of March, 2006, before me appeared Xxxx Xxxxxxx, to me
personally known, who, being by me duly sworn did say that he is the Managing
Director of LaSalle Bank National Association, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its board of directors, and said __________________ acknowledged said instrument
to be the free act and deed of said corporation.
/s/ Xxxxx Xx Xxx
---------------------------------------------
Notary Public
[Notary Stamp]
