EXHIBIT 10.5
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
NCB, FSB
(Seller)
--------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2006
--------------------------------
TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date......................
Section 2. Closing Date Actions..............................................
Section 3. Conveyance of Mortgage Loans......................................
Section 4. Depositor's Conditions to Closing.................................
Section 5. Seller's Conditions to Closing....................................
Section 6. Representations and Warranties of Seller..........................
Section 7. Obligations of Seller.............................................
Section 8. Crossed Mortgage Loans............................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance........................................................
Section 10. Representations and Warranties of Depositor.......................
Section 11. Survival of Certain Representations, Warranties and
Covenants.........................................................
Section 12. Transaction Expenses..............................................
Section 13. Recording Costs and Expenses......................................
Section 14. Notices...........................................................
Section 15. Notice of Exchange Act Reportable Events..........................
Section 16. Examination of Mortgage Files.....................................
Section 17. Successors........................................................
Section 18. Governing Law.....................................................
Section 19. Severability......................................................
Section 20. Further Assurances................................................
Section 21. Counterparts......................................................
Section 22. Treatment as Security Agreement...................................
Section 23. Recordation of Agreement..........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 1, 2006, is made by and between NCB, FSB, a federal savings bank
chartered by the Office of Thrift Supervision of the U.S. Department of Treasury
("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware
corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement specified on such Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against receipt by
Seller of a written receipt, pursuant to an arrangement between Seller and the
Trustee; provided, however, that item (xvi) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File; and provided, further, that Seller shall pay (or
cause the related Borrower to pay) any costs of the assignment or amendment of
each letter of credit described under said item (xvi) required in order for the
Trustee to draw on such letter of credit pursuant to the terms of the Pooling
and Servicing Agreement and shall deliver the related assignment or amendment
documents within thirty (30) days after the Closing Date. In addition, prior to
such assignment or amendment of a letter of credit, Seller will take all
necessary steps to enable the applicable Master Servicer to draw on the related
letter of credit on behalf of the Trustee pursuant to the terms of the Pooling
and Servicing Agreement, including, if necessary, drawing on the letter of
credit in its own name pursuant to written instructions to draw from the
applicable Master Servicer and upon receipt, immediately remitting the proceeds
of such draw (or causing such proceeds to be remitted) to the applicable Master
Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by Seller
on or prior to the Closing Date. The "Mortgage Loan Purchase Price" paid
by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon as the Seller's share of the net
securitization proceeds from the sale of the Publicly Offered Certificates
and the Private Certificates as set forth in the Closing Statement (which
amount includes, without limitation, accrued interest). Pursuant to the
terms of the Pooling and Servicing Agreement, Depositor shall sell all of
its right, title and interest in and to the Mortgage Loans to the Trustee
for the benefit of the Holders of the Certificates.
(ii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iii) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 21(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or prepayment premiums received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or prepayment premiums that were due on or
prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the
form of Exhibit B hereto and a true and complete copy of the Note),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from the
Mortgage Loan Originator either in blank or to Seller, and further
endorsed (at the direction of Depositor given pursuant to this Agreement)
by Seller, on its face or by allonge attached thereto, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Xxxxx Fargo Bank, N.A., as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4, without
recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-C4";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof
from the Mortgage Loan Originator of the Loan to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of
recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator), either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2006-C4";
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the
Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller (or the
Mortgage Loan Originator) either in blank or to "Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2006-C4," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective under applicable law);
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence, when appropriate, of recording
thereon or in the form submitted for recording, in those instances where
the terms or provisions of the Mortgage, Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a pro forma or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company or
escrow instructions binding on the title insurer irrevocably obligating
the title insurer to issue such title insurance policy) or interim binder
that is marked as binding and countersigned by the title company, insuring
the priority of the Mortgage as a first lien on the related Mortgaged
Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) sufficient to perfect (and maintain the perfection of) the
security interest held by the Mortgage Loan Originator (and each assignee
of record prior to the Trustee) in and to the personalty of the Borrower
at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to
assign each such UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Borrower if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Borrower;
(xiii) an original or copy of any subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to subordinate indebtedness, including any mezzanine
loan documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement and
a copy of the UCC Financing Statements, if any, submitted for filing with
respect to Seller's security interest in the Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (together with UCC
Financing Statement assignments in a form suitable for filing or
recording, sufficient to transfer such security interest to the Trustee on
behalf of the Certificateholders);
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; provided that in connection with the delivery of
the Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies thereof;
(xviii) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any amendments,
modifications or extensions thereto, if any, or certified copies thereof;
(xix) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents; and
(xx) if applicable (and not for purposes of the Seller's delivery
obligations), the original or a counterpart of any post-closing agreement
relating to any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Borrower) required to be added
to the Mortgage File pursuant to Section 3.20(j) of the Pooling and
Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in accordance
with the transfer contemplated by the related Mortgage Loan Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with evidence of
recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, Seller: (i) shall
deliver, or cause to be delivered, to the Trustee or its designee a duplicate
original or true copy of such document or instrument certified by the applicable
public recording or filing office, the applicable title insurance company or
Seller to be a true and complete duplicate original or copy of the original
thereof submitted for recording or filing; and (ii) shall deliver, or cause to
be delivered, to the Trustee or its designee either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy of
the original thereof submitted for recording or filing), with evidence of
recording or filing thereon (with a copy to the applicable Master Servicer),
within 365 days after the Closing Date, which period may be extended up to two
times, in each case for an additional period of 90 days (provided that Seller,
as certified in writing to the Trustee prior to each such 90-day extension, is
in good faith attempting to obtain from the appropriate recording or filing
office such original or photocopy). Compliance with this paragraph will satisfy
Seller's delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in accordance
with the transfer contemplated by the related Mortgage Loan Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Trustee (with a copy
to the applicable Master Servicer) or its designee on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller has so notified the Trustee and shall
not be in breach of its obligations with respect to such delivery, provided that
Seller promptly forwards such UCC Financing Statement to the Trustee (with a
copy to the applicable Master Servicer) upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC Financing
Statements to the Trustee to be delivered pursuant to clauses (iii), (v) and
(xi) of the last sentence of the first paragraph of this Section 3
(collectively, the "Assignments"), to submit those Assignments for filing and
recording, as the case may be, in the applicable public filing and recording
offices and to deliver those Assignments to the Trustee or its designee as those
Assignments (or certified copies thereof) are received from the applicable
filing and recording offices with evidence of such filing or recording indicated
thereon. However, in the event Seller engages a third-party contractor as
contemplated in the immediately preceding sentence, the rights, duties and
obligations of Seller pursuant to this Agreement remain binding on the Seller;
and, if Seller does not engage a third party as contemplated by the immediately
preceding sentence, then Seller will still be liable for recording and filing
fees and expenses of the Assignments as and to the extent contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, rent rolls,
leases, environmental and engineering reports, third-party underwriting reports,
appraisals, surveys, legal opinions, estoppels, financial statements, operating
statements and any other information provided by the respective Borrower from
time to time, but excluding any draft documents, attorney/client communications,
which are privileged or constitute legal or other due diligence analyses, and
documents prepared by the Seller or any of its Affiliates solely for internal
communication, credit underwriting or due diligence analyses (other than the
underwriting information contained in the related underwriting memorandum or
asset summary report prepared by the Seller in connection with the preparation
of Exhibit A-1 to the Prospectus Supplement)) that are not required to be a part
of a Mortgage File in accordance with the definition thereof, together with
copies of all instruments and documents which are required to be a part of the
related Mortgage File in accordance with the definition thereof.
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File," if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans due after the Cut-off Date, minus
that portion of any such payment which is allocable to the period on or prior to
the Cut-off Date. All scheduled payments of principal due on or before the
Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its Affiliates solely for internal credit analysis or other internal
uses or any attorney-client privileged communication, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Depositor
and are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6(a) (subject to the exceptions set forth
in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor; provided that (A) such opinion may
express its reliance as to factual matters on, among other things
specified in such opinion, the representations and warranties made herein,
and on certificates or other documents furnished by officers of Seller and
(B) in rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the laws of the State of New York and the
laws of the United States and shall not be required to express any opinion
with respect to the registration or qualification of the Certificates
under any applicable state or federal securities laws;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five (5) limited powers of attorney in favor of the Trustee and
applicable Special Servicer empowering the Trustee and, in the event of the
failure or incapacity of the Trustee, the applicable Special Servicer, to
record, at the expense of Seller, any Mortgage Loan Documents required to be
recorded and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage Files. Seller shall reasonably
cooperate with the Trustee and the applicable Special Servicer in connection
with any additional powers or revisions thereto that are requested by such
parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement,
including, without limitation, payment of the Mortgage Loan Purchase Price,
shall have been duly performed and complied with in all material respects; and
all of the representations and warranties of Depositor under this Agreement
shall be true and correct in all material respects as of the Closing Date; and
no event shall have occurred with respect to Depositor which, with notice or the
passage of time, would constitute a material default under this Agreement, and
Seller shall have received certificates to that effect signed by authorized
officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a federal
savings bank in good standing under the laws of the United States of
America. Seller has conducted and is conducting its business so as to
comply in all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction over it,
except where the failure so to comply would not have a materially adverse
effect on the performance by Seller of this Agreement, and there is no
charge, action, investigation, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and document
executed and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party thereto,
constitutes the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
(xiii) The information set forth in any Disclosure Information (as
defined in the NCB, FSB Indemnification Agreement), as last forwarded to
each prospective investor at or prior to the date on which a contract for
sale was entered into with such prospective investor, (i) does not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the NCB, FSB Indemnification Agreement); but
only to the extent that (i) such information regards the Mortgage Loans
and is contained in the Loan Detail (as defined in the NCB, FSB
Indemnification Agreement) or, to the extent consistent therewith, the
Diskette (as defined in the NCB, FSB Indemnification Agreement) or (ii)
such information regarding the Seller or the Mortgage Loans was contained
in the Confidential Offering Circular or the Prospectus Supplement under
the headings "Summary of Prospectus Supplement--Relevant
Parties/Entities," "--Sponsors and Mortgage Loan Sellers,"
"--Originators," "--The Underlying Mortgage Loans," "--Source of the
Underlying Mortgage Loans," "Risk Factors," "Description of the Sponsors
and Mortgage Loan Sellers" "Description of the Underlying Mortgage Loans"
and "--Significant Mortgage Loans" and such information does not represent
an incorrect restatement or an incorrect aggregation of correct
information regarding the Mortgage Loans contained in the Loan Detail.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "due date for the subject Replacement Mortgage Loan during the
month of substitution"). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans (subject to the
exceptions to such representations and warranties set forth in the Exception
Report), as of the date hereof in Section 6(a)(xii) or as of the Closing Date
pursuant to Section 4(b)(iii) (in either case, subject to the exceptions to such
representations and warranties set forth in the Exception Report), or in the
case of any Replacement Mortgage Loan, as of the date of substitution pursuant
to Section 6(b) (in any such case, a "Breach"), or receives notice that (a) any
document required to be included in the Mortgage File related to any Mortgage
Loan is not in the Trustee's (or its designee's) possession within the time
period required herein or (b) such document has not been properly executed or is
otherwise defective on its face (clause (a) and clause (b) each, a "Defect"
(which term shall include the "Defects" detailed in the immediately following
paragraph) in the related Mortgage File), and if such Breach or Defect, as the
case may be, materially and adversely affects, or is deemed hereby to materially
and adversely affect, the value of any Mortgage Loan or any successor REO Loan
with respect thereto or the interests of the Holders of any Class of
Certificates (in which case such Breach or Defect shall be a "Material Breach"
or a "Material Defect," as applicable), then Seller shall, upon written request
of Depositor, the Trustee, the applicable Master Servicer or the applicable
Special Servicer, not later than 90 days after the receipt by Seller of such
written request (subject to the second succeeding paragraph, the "Initial
Resolution Period"): (i) cure such Breach or Defect in all material respects;
(ii) repurchase the affected Mortgage Loan at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement); or (iii) substitute, in
accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the applicable Collection
Account any Substitution Shortfall Amount (as defined in the Pooling and
Servicing Agreement) in connection therewith; provided, however, that if (i)
such Material Breach or Material Defect is capable of being cured but not within
the Initial Resolution Period, (ii) such Material Breach or Material Defect does
not cause the related Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code), (iii) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the Rating
Agencies, the applicable Master Servicer, the applicable Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90-day period, then Seller shall have an
additional 90 days to cure such Material Defect or Material Breach. If any
Breach pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Trust Fund (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by the applicable Master Servicer, the applicable Special
Servicer, the Trustee or the Trust Fund that are the basis of such Breach and
have not been reimbursed by the related Borrower; provided, however, that in the
event any such costs and expenses exceed $10,000, Seller shall have the option
to either repurchase the related Mortgage Loan at the applicable Purchase Price
or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, Seller shall remit the amount of such costs and
expenses and upon its making such remittance, Seller shall be deemed to have
cured such Breach in all respects. With respect to any repurchase of a Mortgage
Loan hereunder or with respect to any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the Determination Date for
such month; (B) scheduled payments of principal and interest due with respect to
the Qualified Substitute Mortgage Loan(s) after the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced after the related Cut-off
Date and received by the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, shall be part of the Trust Fund; and (C) scheduled payments of
principal and interest due with respect to each such Qualified Substitute
Mortgage Loan on or prior to the Due Date in the month of substitution, and
scheduled payments of principal and interest due with respect to each Mortgage
Loan being repurchased or replaced and received by the applicable Master
Servicer or the applicable Special Servicer on behalf of the Trust after the
related date of repurchase or substitution, shall not be part of the Trust Fund,
and Seller (or, if applicable, any person effecting the related repurchase or
substitution in the place of Seller) shall be entitled to receive such payments
promptly following receipt by the applicable Master Servicer or the applicable
Special Servicer, as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) of the last
sentence of the first paragraph of Section 3 hereof; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of the intervening assignment as recorded or
as sent for recordation, together with a certificate stating that the original
intervening assignment was sent for recordation, or a copy of the intervening
assignment and the related recording information; or (e) the absence from the
Servicer File of any required original letter of credit, provided that such
Defect may be cured by any substitute letter of credit or cash reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File of the
original or a copy of any required ground lease. In addition, Seller shall cure
any Defect described in clause (b), (c), (e) or (f) of the immediately preceding
sentence as required in Section 2.02(b) of the Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless such other Crossed Mortgage Loans satisfy the Crossed
Mortgage Loan Repurchase Criteria (as defined in the Pooling and Servicing
Agreement) and Seller can satisfy all other criteria for substitution or
repurchase of the affected Mortgage Loan(s) set forth in the Pooling and
Servicing Agreement. In the event that one or more of such other Crossed
Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase Criteria, Seller may
elect either to repurchase or substitute for only the affected Crossed Mortgage
Loan as to which the related Material Breach or Material Defect exists or to
repurchase or substitute for all of the Crossed Mortgage Loans in the related
Mortgage Group. The determination of the applicable Special Servicer as to
whether the Crossed Mortgage Loan Repurchase Criteria have been satisfied shall
be conclusive and binding in the absence of manifest error. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the
applicable Master Servicer to determine if the Crossed Mortgage Loan Repurchase
Criteria have been satisfied, so long as the scope and cost of such Appraisal
has been approved by Seller (such approval not to be unreasonably withheld). For
purposes of this paragraph, a "Mortgage Group" is any group of Mortgage Loans
identified as a Mortgage Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the effect that such
partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, receipt of the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans(s)), shall promptly release the related Mortgage File
and Servicer File or cause them to be released, to Seller and shall execute and
deliver such instruments of transfer or assignment as shall be necessary to vest
in Seller the legal and beneficial ownership of such Mortgage Loan (including
any property acquired in respect thereof or proceeds of any insurance policy
with respect thereto) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted
(in which case, the Seller will be obligated to purchase or substitute for all
Crossed Mortgage Loans in the related Mortgage Group (defined above)). Any
reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by
Seller of the parenthetical in representation (xxviii)(1) set forth on Exhibit A
hereto. Unless the Seller elects to repurchase or substitute for such Mortgage
Loan in accordance with the second paragraph of Section 7 Seller shall pay all
reasonable costs and expenses associated with a defeasance of a Mortgage Loan to
the extent such costs and expenses have not been paid by the related Borrower
and such Borrower is not required to pay them under the terms of the related
Mortgage Loan Documents in effect on or before the Closing Date, the payment of
which fees shall constitute the sole remedy of any breach by Seller of
representation (liii)(F) set forth on Exhibit A hereto unless the Seller elects
to repurchase or substitute for such Mortgage Loan in accordance with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Depositor,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 13 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees and expenses incurred
by the Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (212)
743-4756 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department,
Telecopy No.: (000) 000-0000), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at 0000 Xxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxxx Xxxxx, Telecopy No.: (000) 000-0000,
or such other address or telecopy number as may be designated by Seller to
Depositor in writing.
Section 15. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee any disclosure
information relating to any event reasonably determined in good faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in such form),
including, without limitation, the disclosure required under Items 1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use its best
efforts to deliver proposed disclosure language relating to any event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the
Trustee and the Depositor within one (1) business day and in any event no later
than two (2) business days of the Seller becoming aware of such event and shall
provide disclosure relating to any other event reasonably determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or Form 10-K within
two (2) business days following the Depositor's request for such disclosure
language. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice from the Depositor or the
Trustee that the Trustee has filed a Form 15 with respect to the Trust Fund as
to that fiscal year in accordance with Section 11.10(a) of the Pooling and
Servicing Agreement. The Seller hereby acknowledges that the information to be
provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
Section 16. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 17. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and permitted assigns, and nothing expressed 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 designated
Persons and for the benefit of no other Person; it being understood that (a) the
indemnities of Seller contained in that certain Indemnification Agreement dated
September 21, 2006, among Seller, Depositor, the Initial Purchaser and the
Underwriters, relating to, among other things, information regarding the
Mortgage Loans in the Prospectus Supplement and the Offering Circular, subject
to all limitations therein contained, shall also be for the benefit of the
officers and directors of Depositor, the Underwriters and the Initial Purchaser
and any person or persons who control Depositor, the Underwriters and the
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended, and (b) the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder; provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 19. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 20. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 21. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 22. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
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 property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule or that constitute Replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property 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 (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes 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 or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, 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 (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee 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 and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 23. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
NCB, FSB
as Seller
By:_____________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:_____________________________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 1, 2006, between NCB, FSB and Credit Suisse First Boston Mortgage
Securities Corp. Capitalized terms used herein without definition have the
meanings given them in or by reference in the Agreement or, if not defined in
the Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated September 21, 2006, between Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2006-C4.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 28, 2006.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2006 (or with
respect to Mortgage Loans which had closing/funding dates in September 2006, the
respective closing/funding dates of such Mortgage Loans).
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence of this Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse Securities (USA) LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"NCB, FSB Indemnification Agreement" means the agreement by and
among the Depositor, the Seller and each Underwriter.
"Offering Circular" means the confidential offering circular dated
September 21, 2006, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
September 1, 2006, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated September 8, 2006, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-129918).
"Prospectus Supplement" means the Prospectus Supplement, dated
September 21, 2006, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class
A-1, Class A-2, Class A-AB, Class A-3, Class A-1-A, Class A-M and Class A-J
Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse Securities (USA) LLC, LaSalle
Financial Services, Inc., KeyBanc Capital Markets, Barclays Capital Inc.,
Wachovia Capital Markets, LLC and Greenwich Capital Markets, Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
September 21, 2006, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
See Attached.
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Exception to Representations (v) and (xxxix)
--------------------------------------------
Mortgage Loan Exception
------------- ---------
174 Napa Industrial The mezzanine level of the building
(which was constructed as an addition
to the original building) located on
the Mortgaged Property was constructed
by the previous owners without a
permit. Borrower is cooperating with
the local municipality to complete
certain repairs (that the local
municipality required) to the
Mortgaged Property. The estimated cost
to complete the repairs is between
$60,000 and $100,000. Upon completion
of the repairs, the local municipality
will issue a final certificate of
occupancy for the mezzanine level. A
holdback in the amount of $175,000 was
established at the closing of the
Mortgage Loan to assure that such
repairs are performed and that the
certificate of occupancy will be
obtained.
Exceptions to Representation (vii)
----------------------------------
Mortgage Loans Exceptions
------------- ---------
13 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx There is an AB note structure in
place. The original principal amount
of the B Note is $4,500,000. The
mortgagee and the B Note holder
entered into an intercreditor
agreement.
155 XxXxxxxx Retail There is an AB note structure in
place. The original principal amount
of the B Note is $237,500. The
mortgagee and the B Note holder
entered into an intercreditor
agreement.
Exceptions to Representations (x) and (xiii)
--------------------------------------------
Mortgage Loans Exceptions
------------- ---------
13 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx The Mortgaged Property is subject to a
right of first refusal in favor of the
tenant (SRA International Inc.). The
right of first refusal does not apply
with respect to any transfer of title
to the mortgagee through a foreclosure
or a deed-in-lieu of foreclosure,
however, subsequent transfers will be
subject to the right of first refusal.
35 Village Shoppes at Gainesville The Mortgaged Property is subject to a
right of first refusal in favor of the
tenant (Publix). The right of first
refusal does not apply with respect to
any transfer of title to the mortgagee
through a foreclosure or a
deed-in-lieu of foreclosure, however,
subsequent transfers will be subject
to the right of first refusal.
96 Principal Life Building The Mortgaged Property is subject to a
right of first offer in favor of the
tenant. The right of first offer does
not apply with respect to any transfer
of title to the mortgagee through a
foreclosure or a deed-in-lieu of
foreclosure, however, subsequent
transfers will be subject to the right
of first offer.
The Mortgaged Property is subject to a
development agreement with the City of
Cedar Falls, Iowa (the "City"),
pursuant to which agreement the City
has the right to approve a purchaser of
the Mortgaged Property at a foreclosure
sale. The City can only deny a proposed
purchaser if it reasonably determines
that (i) the proposed purchaser does
not have the ability to perform certain
maintenance and insurance obligations
as further detailed in the agreement
with the City and to pay real estate
taxes or (ii) the overall financial
security provided to the City will be
materially impaired. However, the
current lender and its successors and
assigns are permitted to foreclose on
the Mortgaged Property without the
City's consent.
114 Walgreens (Baltimore) Ingleside Each Mortgaged Property is subject to
000 Xxxxxxxxx - Xxxxxx, XX the right of first refusal to purchase
251 Walgreens - Reno the respective Mortgaged Property in
favor of the sole tenant (Walgreens).
The right of first refusal does not
apply with respect to any transfer of
title to the mortgagee through a
foreclosure or a deed-in-lieu of
foreclosure, however, subsequent
transfers will be subject to the right
of first refusal.
327 Rite Aid - Shelbyville, KY The Mortgaged Property is subject to a
right of first refusal in favor of the
tenant (Rite Aid). The right of first
refusal does not apply with respect to
any transfer of title to the mortgagee
through a foreclosure or a
deed-in-lieu of foreclosure, however,
subsequent transfers will be subject
to the right of first refusal.
Exceptions to Representation (xvi)
----------------------------------
Mortgage Loans Exceptions
------------- ---------
109 Copper Beach Townhomes IUP The physical inspection report for the
Mortgage Property is not within twelve
(12) months of the date hereof, the
physical inspection report was
obtained in August, 2005.
000 Xxxxxxxxx (Xxxxxxxxx) Xxxxxxxxx The physical inspection report for the
Mortgage Property is not within twelve
(12) months of the date hereof, the
physical inspection report was
obtained in July, 2005.
126 Best Western - Tampa The physical inspection report for the
Mortgage Property is not within twelve
(12) months of the date hereof, the
physical inspection report was
obtained on September 1, 2005.
Exceptions to Representation (xxiii)
------------------------------------
Mortgage Loans Exceptions
------------- ---------
35 Village Shoppes at Gainesville Borrower is required to obtain
terrorism insurance only if coverage is
commercially available for properties
similar to the Mortgaged Property and
located in and around the region in
which the Mortgaged Property is
located.
53 Stock Building Portfolio Borrower is not required to obtain
terrorism insurance, however, a
principal has signed a carveout
guaranty to cover any losses, costs or
damages which may result from the
failure to carry terrorism insurance.
76 Clerbrook RV Resort Neither borrower is required to obtain
176 ELS - Scenic MHP terrorism insurance, however, each
Mortgaged Property is a manufactured
housing facility.
114 Walgreens (Baltimore) Ingleside Borrower may provide insurance through
its tenant and the tenant (Walgreens)
on the property has the right to self
insure in lieu of third party
insurance. A nonrecourse carveout was
added for any losses, liabilities,
damages, costs, expenses and claims
sustained by mortgagee as a result of
(x) mortgagee not being included as an
additional insured under any insurance
coverage provided by tenant
(Walgreens) under its lease, or (y)
borrower's lack of its own general
liability insurance coverage naming
mortgagee as an additional insured in
the event that tenant (Walgreens) does
not provide any such insurance
coverage naming mortgagee as an
additional insured.
000 Xxxxxxxxx - Xxxxxx, XX Borrower may provide insurance through
251 Walgreens - Reno its tenant and the tenant (Walgreens)
on the property has the right to self
insure in lieu of third party
insurance. There may not be actual
insurance policies in place covering
terrorism or business interruption, but
there is a nonrecourse carveout for
losses relating to (a) lack of
terrorism insurance and (b) loss of
rents.
327 Rite Aid - Shelbyville, KY Borrower may provide insurance through
its tenant and the tenant (Rite Aid)
on the property has the right to self
insure in lieu of third party
insurance. There may not be actual
insurance policies in place covering
terrorism, but there is a nonrecourse
carveout for losses relating to a lack
of terrorism insurance.
Exception to Representation (xxvi)
----------------------------------
Mortgage Loan Exception
------------- ---------
All LaSalle Loans Generally, Seller performs bankruptcy
and insolvency searches prior to the
closing of each Mortgage Loan and no
subsequent searches are then performed
by Seller with respect to any
borrower. Therefore, to Seller's
actual knowledge, no borrower is a
debtor in a state or federal
bankruptcy or insolvency proceeding.
Exception to Representation (xxvii)
-----------------------------------
Mortgage Loan Exception
------------- ---------
179 Turnberry Apartments The Phase I environmental report for
the Mortgaged Property recommended an
implementation of an operations and
maintenance plan for asbestos at the
Mortgaged Property. Mortgagee did not
require borrower to implement such a
plan because it was determined that
the asbestos materials were not widely
distributed on the Mortgaged Property.
Exception to Representations (xxviii)
-------------------------------------
Mortgage Loan Exception
------------- ---------
14 The Edge at Avenue North The owner of borrower is the obligor
on an existing mezzanine promissory
note in the original principal amount
of $15,000,000 (at the time of the
closing of the transaction, only
$10,000,000 was advanced and is
currently outstanding, however, the
obligor has the right (subject to the
satisfaction of certain conditions) to
borrow the additional $5,000,000). The
mortgagee and the mezzanine lender
entered into an intercreditor
agreement.
34 The Acropolis Portfolio The respective Mortgage Loan Documents
00 Xxxxxxx Xxxxx Xxxxx permit each borrower to obtain future
000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxx mezzanine debt subject to the
satisfaction of certain terms and
conditions as set forth in the
respective Mortgage Loan Documents.
Exceptions to Representation (xxxi)
-----------------------------------
Mortgage Loans Exceptions
------------- ---------
14 The Edge at Avenue North (K) The Mortgaged Property is subject
to a ground lease (under which the
ground lessor is the Redevelopment
Authority of the City of Philadelphia
("RDA")) and a subground lease (under
which the subground lessor is Beech
Interplex, a not-for-profit
corporation and an affliate of RDA)
both of which cover the entire
Mortgaged Property. The ground lease
and the subground lease are both
silent on whether the lessor/sublessor
or the lessee/sublessee has an option
to terminate or modify the ground
lease or subground lease (as
appliable) without the prior written
consent of the mortgagee as a result
of any casualty or partial
condemnation. However, each of the
ground lease and the subground lease
does provide that each of the ground
lease and the subground lease (as
applicable ) may not be terminated or
amended by lessor/sublessor or
lessee/sublessee without the
mortgagee's consent.
(L) Neither the ground lease nor the
subground lease requires the lessor or
sublessor (as applicable) to enter into
a new lease with mortgagee following
the termination or rejection of the
ground lease. However, if the ground
lease is terminated then the subground
lease becomes the direct ground lease
between the ground lessor and the
subground lessee.
30 Baylor Medical Towers (B) The ground lease does not address
whether any amendment, termination,
modification or cancellation of the
ground lease without mortgagee's
consent is binding on such mortgagee.
However, the Mortgage Loan Documents
require borrower to obtain mortgagee's
consent to any amendment, termination,
modification or cancellation of the
ground lease.
(K) In the event of a casualty,
mortgagee or a trustee may hold the
insurance proceeds, but, the Mortgaged
Property must be rebuilt.
In the event of a condemnation, each
party is permitted to keep its
proportionate share of the condemnation
award, however, if no improvements are
impacted by such condemnation or if
such condemnation does not
substantially interfere with the
lessee's use as set forth in the ground
lease, then the lessor under the ground
lease is entitled to the entire
condemnation award.
(L) The ground lease does not
specifically require the lessor to
enter into a new lease in the event of
a rejection of the ground lease in
connection with a bankruptcy.
Exceptions to Representation (xxxi) - cont'd
--------------------------------------------
Mortgage Loans Exceptions
------------- ---------
114 Walgreens (Baltimore) Ingleside (B) The ground lease does not address
whether any amendment, termination,
modification or cancellation of the
ground lease without mortgagee's
consent is binding on such mortgagee.
However, the Mortgage Loan Documents
require borrower to obtain mortgagee's
consent to any amendment, termination,
modification or cancellation of the
ground lease.
(K) The ground lease is silent on
whether the lessor or the lessee has an
option to terminate or modify the
ground lease without the prior written
consent of the mortgagee as a result of
any casualty or partial condemnation.
However, the ground lease does provide
that the ground lease may not be
terminated or amended by lessor or
lessee without the mortgagee's consent.
Exception to Representation (xxxvii)
------------------------------------
Mortgage Loan Exception
------------- ---------
00 Xxxxxxxxxx Xxxxx At the time of each borrower's
56 Sandpiper Apartments formation, the borrower was not formed
to be a Single Purpose Entity, however,
prior to the closing of each borrower's
Mortgage Loan, each borrower's
organizational documents were amended
to make such borrower's organizational
documents comply with the Single
Purpose Entity requirements.
128 Scripps Health Office Borrower previously owned another
parcel that was sold by borrower 4
years ago. In addition, borrower owns
one other parcel (a currently vacant
residential lot) in addition to the
Mortgaged Property. Currently, there
is no debt encumbering the vacant lot
and borrower is prohibited from
acquiring any other properties or
incurring other debt. Borrower has
signed a nonrecourse carveout to
indemnify the mortgagee from any
losses suffered as a result of
borrower acquiring any real property
(other than the Mortgaged Property) at
any time.
Exceptions to Representation (xl)
---------------------------------
Mortgage Loans Exceptions
------------- ---------
225 Jefferson Shoppes The Mortgaged Property does not
consist of a separate tax parcel,
however, borrower has submitted the
paperwork to the applicable
governmental agency in order to obtain
a separate tax parcel.
228 AutoZone - Xxxxxx, SC The Mortgaged Property does not
consist of a separate tax parcel.
Borrower has an obligation under the
Mortgage Loan Documents to obtain such
separate tax parcel.
Exception to Representation (xlvii)
-----------------------------------
Mortgage Loan Exception
------------- ---------
34 The Acropolis Portfolio The Mortgaged Property is comprised of
ten (10) condominium units in seven
(7) buildings. One (1) or more such
condominium units may be released from
the lien of the Mortgage upon
defeasance of 115% of the outstanding
principal balance of the loan amount
allocated to the condominium unit
being released.
Exceptions to Representation (liv)
----------------------------------
Mortgage Loans Exceptions
------------- ---------
All LaSalle Loans Generally, the Mortgage Loan Documents
do not have a non-recourse carveout
for "waste," but they do have a
non-recourse carveout for "material
waste of the Mortgaged Property caused
by the intentional or grossly
negligent act or omission of Borrower,
its agents, affiliates, officers and
employees".
00 Xxx Xxxx xx Xxxxxx Xxxxx Xxxxxxxx is not liable for
"misapplication or misappropriation",
but the borrower is liable for
"misapplication or conversion" of
rents, insurance proceeds or
condemnation awards.
Borrower is not liable for "any willful
act of material waste", but borrower is
liable for "the removal or disposal of
any portion of the Mortgaged Property
after an Event of Default unless
promptly replaced with property of the
same utility and of the same or greater
value".
00 Xxxx Xxxxxxx Center The aggregate liability of all
tenant-in-common borrowers with
respect to environmental matters is
capped at $22 million, in the
aggregate, for any breach contained in
the related Mortgage Loan Documents.
34 The Acropolis Portfolio Borrower is not liable for
"misapplication or misappropriation",
but the borrower is liable for
"misapplication or conversion" of
rents, insurance proceeds or
condemnation awards. In addition,
borrower is not liable for "willful
act of material waste", but is liable
for "the removal or disposal by
Borrower of any portion of the
Mortgaged Property after an Event of
Default".
35 Village Shoppes of Gainesville Borrower is not liable for "any
willful act of material waste", but
borrower is liable for "material
physical waste".
Borrower is not liable for
"misapplication or misappropriation",
but the borrower is liable for
"misapplication or conversion" of
rents, insurance proceeds or
condemnation awards.
Exceptions to Representation (liv) - cont'd
-------------------------------------------
Mortgage Loans Exceptions
------------- ---------
76 Clerbrook RV Resort With respect to each Mortgage Loan,
176 ELS - Scenic MHP the respective borrower is not liable
for "any willful act of material
waste", but the respective borrower is
liable for "any physical waste of the
Mortgaged Property caused by the
intentional or grossly negligent act(s)
or omission(s) of the Borrower, its
agents, affiliates officers and
employees or the removal or disposal of
any portion of the Mortgaged Property
after and during the continuance of an
Event of Default".
000 Xxx Xxxxx Shops Borrower is not liable for "any
willful act of material waste" but
borrower is liable for "material
physical waste".
Exceptions to Representation (lv)
---------------------------------
Mortgage Loans Exception
------------- ---------
13 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx The respective Mortgage Loan Documents
34 The Acropolis Portfolio provide for an initial interest only
period before amortization commences.
Exception to Representation (lviii)
-----------------------------------
Mortgage Loan Exception
------------- ---------
182 18th and Xxxxxxx Borrower has a one time only right to
encumber the Mortgaged Property with a
junior mortgage loan. One of the
conditions to the junior mortgage loan
is that borrower executes an amendment
to the senior note increasing the
interest rate by 5 basis points.
Schedule V-1
Mortgage Loans With Subordinate Secured
Indebtedness or Mezzanine Financing
LOAN SUBORDINATE SECURED INDEBTEDNESS/
MEZZANINE FINANCING
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
Except as disclosed in the Exception Report to this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, except for interests in servicing rights created
or granted under the Pooling and Servicing Agreement, subservicing agreements
and/or servicing rights purchase agreements being executed and delivered in
connection herewith;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents,
the Borrower, lessee and/or operator was in possession of all licenses, permits,
and authorizations then required for use of the Mortgaged Property which were
valid and in full force and effect as of the origination date;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of such signatory, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no valid offset, defense, counterclaim, or right of
rescission available to the related Borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Each related Assignment of Leases creates a valid first
priority collateral assignment of, or a valid first priority lien or security
interest in, certain rights under the related lease or leases, subject only to a
license granted to the related Borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases, including
the right to operate the related leased property, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); no person other than the related Borrower
owns any interest in any payments due under such lease or leases that is
superior to or of equal priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and (B) each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are bonded over, escrowed for or insured against by a lender's title
insurance policy (as described below). A UCC Financing Statement has been filed
and/or recorded (or sent for filing or recording) in all places necessary to
perfect a valid security interest in the personal property necessary to operate
the Mortgaged Property; any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid and enforceable lien on property described
therein, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee and/or leasehold interest of the related Borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy, or its equivalent as adopted in the applicable jurisdiction, provided
that if such policy is yet to be issued, such insurance may be evidenced by a
"marked-up" commitment for title insurance, a pro forma or specimen title
insurance policy or signed escrow instructions, which in any case are binding on
the subject title insurer, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (C) the exceptions (general and specific)
and exclusions set forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current general use of the Mortgaged
Property or materially interferes with the security intended to be provided by
such Mortgage or with the related Borrower's ability to pay its obligations when
they become due or the value of the Mortgaged Property, (D) the rights of
tenants, as tenants only, under leases, including subleases, pertaining to the
related Mortgaged Property, (E) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the trust fund, the lien of
the Mortgage for that other Mortgage Loan, (F) if the related Mortgage Loan is a
CBA A Loan, the portion of the lien of the related Mortgage that secures the
related CBA B Loan and (G) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (A), (B), (C), (D), (E),
(F) and (G), collectively "Permitted Encumbrances"), and with respect to each
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property,
the value of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; the premium for such policy was paid in full; such policy (or if
it is yet to be issued, the coverage to be afforded thereby) is issued by a
title insurance company licensed to issue policies in the state in which the
related Mortgaged Property is located (unless such state is Iowa) and is
assignable (with the related Mortgage Loan) to the Depositor and the Trustee
without the consent of or any notification to the insurer, and is in full force
and effect upon the consummation of the transactions contemplated by this
Agreement; no claims have been made under such policy and the Seller has not
undertaken any action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of such
policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related mortgage file;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves or a letter of credit
have been established to cover the costs to remediate such damage or the
reasonable estimation of the costs to remediate such damage was no more than
$50,000, and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the use or value of the Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loans or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and/or servicing rights purchase agreements being
executed and delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required to be in the
possession or under the control of the Seller pursuant to each Mortgage Loan are
in the possession, or under the control, of the Seller or its agent and there
are no deficiencies (subject to any applicable grace or cure periods) in
connection therewith and all such escrows and deposits are being conveyed by the
Seller to the Depositor and identified as such with appropriate detail;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related Borrower to maintain all such insurance and, at such
Borrower's failure to do so, authorizes the lender to maintain such insurance at
the Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;
(xxiv) There is no monetary default (other than payments due but not
yet 30 days or more past due), breach, violation or event of acceleration
existing under the related Mortgage Loan; and, to the Seller's knowledge, there
is no (A) non-monetary default, breach, violation or event of acceleration
existing under the related Mortgage Loan or (B) event (other than payments due
but not yet 30 days or more past due) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B) materially
and adversely affects the use or value of the Mortgage Loan or 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 or warranty made by the Seller in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in any Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). To the
Seller's knowledge, no Borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report (or, with respect to certain residential cooperative loans
with an original principal balance of $500,000 or less, a transaction screen
process report meeting ASTM standards) and, with respect to certain Mortgage
Loans, a Phase II environmental report, was conducted by a reputable
environmental consulting firm in connection with such Mortgage Loan, which
report (or transaction screen) did not indicate any material non-compliance with
applicable environmental laws or material existence of hazardous materials or,
if any material non-compliance or material existence of hazardous materials was
indicated in any such report, then at least one of the following statements is
true: (A) funds reasonably estimated to be sufficient to cover the cost to cure
any material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed, or a letter of credit in
such amount has been provided, by the related Borrower and held by the related
mortgagee; (B) an operations or maintenance plan has been required to be
obtained by the related Borrower; (C) the environmental condition identified in
the related environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or closure letter was
obtained from the applicable governmental regulatory authority (or the
environmental issue affecting the related Mortgaged Property was otherwise
listed by such governmental authority as "closed"); (E) such conditions or
circumstances identified in the Phase I environmental report were investigated
further and based upon such additional investigation, an environmental
consultant recommended no further investigation or remediation; (F) a party with
financial resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than $87,700 and 2% of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's environmental insurance policy was obtained with respect to
each such Mortgage Loan and is a part of the related mortgage file. Each of such
environmental insurance policies is in full force and effect, the premiums for
such policies have been paid in full and the Trustee is named as an insured
under each of such policies. To the best of the Seller's knowledge, in reliance
on such environmental reports and except as set forth in such environmental
reports, each Mortgaged Property is in material compliance with all applicable
federal, state and local environmental laws, and to the best of the Seller's
knowledge, no notice of violation of such laws has been issued by any
governmental agency or authority, except, in all cases, as indicated in such
environmental reports or other documents previously provided to the Rating
Agencies; and the Seller has not taken any action which would cause the
Mortgaged Property to not be in compliance with all federal, state and local
environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related Borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related Borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related Borrower,
each Mortgage Loan with a Stated Principal Balance of over $20,000,000 also
contains the provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the holder of
the Mortgage (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent), a majority interest in the
related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage, the current use of the Mortgaged Property or
the related Borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the mortgage loan schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, and
the related Mortgage does not also encumber the related lessor's fee interest in
such Mortgaged Property, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground lease has
been duly recorded. The ground lease permits the interest of the
lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would adversely affect
the security provided by the related Mortgage. To the best of
Seller's knowledge, there has been no material change in the terms
of the ground lease since its recordation, except by any written
instruments which are included in the related mortgage file;
(B) The lessor under such ground lease has agreed in a writing included
in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent
is not binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term plus one
or more optional renewal terms, which, under all circumstances, may
be exercised, and will be enforceable, by the lender) that extends
not less than 20 years beyond the stated maturity of the related
Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment therefor)
obtained by the Seller, the ground lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber
the ground lessor's fee interest;
(E) The ground lease is assignable to the lender and its assigns without
the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any default
beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time
or giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or an ancillary agreement between the lessor and
the lessee, which is part of the Mortgage File, requires the lessor
to give notice of any default by the lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take
other action so long as the lender is proceeding diligently) to cure
any default under the ground lease which is curable after the
receipt of notice of any default, before the lessor may terminate
the ground lease. All rights of the lender under the ground lease
and the related Mortgage (insofar as it relates to the ground lease)
may be exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender. The lessor is not permitted, in absence of an
uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant portion of
the Mortgaged Property subject to the ground lease for any reason,
or in any manner, which would adversely affect the security provided
by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage, any
related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the lender or a trustee appointed
by it having the right to hold and disburse such proceeds as repair
or restoration progresses (except in any case where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest,
except that in the case of condemnation awards, the ground lessor
may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage, any
related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together with any accrued
interest (except as provided by applicable law or in cases where a
different allocation would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender, taking into
account the relative duration of the ground lease and the related
Mortgage and the ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease will
have an option to terminate or modify the ground lease without the
prior written consent of the lender as a result of any casualty or
partial condemnation, except to provide for an abatement of the
rent; and
(L) Provided that the lender cures any defaults which are susceptible to
being cured, the lessor has agreed to enter into a new lease upon
termination of the ground lease for any reason, including rejection
of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized or cross-defaulted with such Mortgage Loans are being
transferred to the Depositor hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property 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 (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $4,000,000 require that the related Borrower be a single-purpose
entity (for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan);
(xxxviii) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein and, except in connection with trade debt and
equipment financings in the ordinary course of Borrower's business, from
carrying any additional indebtedness, except, in each case, liens contested in
accordance with the terms of the Mortgage Loans or, with respect to each
Mortgage Loan having an original principal balance of less than $4,000,000, any
unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the Borrower to maintain flood insurance,
or at such Borrower's failure to do so, authorizes the Lender to maintain such
insurance at the cost and expense of the Borrower;
(xlii) To the knowledge of the Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law or may be substituted in
accordance with applicable law by the related mortgagee, and except in
connection with a trustee's sale after a default by the related Borrower, no
fees are payable to such trustee;
(xliii) RESERVED.
(xliv) To the knowledge of the Seller as of the date hereof, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any Borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such Borrower's ability to perform
under the related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related Borrower, for,
or on account of, payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Prospectus Supplement with
respect to the Crossed Mortgage Loans and Mortgage Loans secured by multiple
Mortgaged Properties, no Mortgage Loan requires the lender to release any
portion of the Mortgaged Property from the lien of the related Mortgage except
upon (A) payment in full or defeasance of the related Mortgage Loan, (B) the
satisfaction of certain legal and underwriting requirements that would be
customary for prudent commercial mortgage lenders, (C) releases of unimproved
out-parcels or (D) releases of portions of the Mortgaged Property which will not
have a material adverse effect on the use or value of the collateral for the
related Mortgage Loan;
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, any
insurance proceeds or condemnation awards in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all casualty losses or
takings in excess of a specified amount or percentage that a prudent commercial
lender would deem satisfactory and acceptable, the lender (or a trustee
appointed by it) having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (B) to the
payment of the outstanding principal balance of such Mortgage Loan together with
any accrued interest thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Trustee or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject 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. With respect to
any Mortgage Loan with a Stated Principal Balance as of the Closing Date of over
$10,000,000, if the related Mortgaged Property does not so comply, to the extent
the Seller is aware of such non-compliance, it has required the related Borrower
to obtain law and ordinance insurance coverage in amounts customarily required
by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the Borrower is required to provide an opinion of counsel
that the Trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the Borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Trust Mortgage Loan (as defined in
the Pooling and Servicing Agreement), the Borrower is required to provide an
opinion of counsel that such defeasance will not cause any REMIC created under
the Pooling and Servicing Agreement to fail to qualify as a REMIC for federal or
applicable state tax purposes and (H) with respect to any Significant Trust
Mortgage Loan (as defined in the Pooling and Servicing Agreement), the Borrower
must obtain Rating Agency confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade or
qualification of the then current rating of any class of Certificate rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (A) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the related Borrower;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; and (D) any cash flow from
the related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvii) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same Borrower and to Borrowers
that are affiliates, accounted for more than 5.0% of the aggregate of the Stated
Principal Balances of all of the Mortgage Loans and all the mortgage loans sold
to the Depositor by Column Financial, Inc. ("Column"), LaSalle Bank National
Association ("LaSalle"), KeyBank National Association ("Key") and Barclays
Capital Real Estate Inc. ("Barclays") pursuant to those certain Mortgage Loan
Purchase Agreements each dated as of September 1, 2006 between the Depositor and
Column, LaSalle, Key and Barclays, respectively; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________, being duly sworn, deposes and says:
1. that he is an authorized signatory of NCB, FSB ("NCB, FSB");
2. that _______________ is the owner and holder of a mortgage loan
in the original principal amount of $______________ secured by a mortgage (the
"Mortgage") on the premises known as ______________ ______________ located in
______________;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by
______________, to _______________, under date of
______________ (the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2006-C4 (the "Trustee") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify and
hold harmless the Trustee and its successors and assigns from and against any
and all costs, expenses and monetary losses arising as a result of
_______________'s failure to deliver said original Note to the Trustee.
NCB, FSB
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2006
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2006-C4
Loan
Group
# # Property Name Address
---- ----- ------------------------------------------------ -----------------------------------
48 2 000 Xxxxxxxxx Xxxxx Owners 000 Xxxxxxxxx Xxxxx
51 1 Xxxxxxxxxx Brothers Distribution Facility 0000 Xxxxx Xxxxx Xxxxx
85 1 President Xxxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx
00 0 Xxxxxxxxxx Gardens Corp. 0000-0000 Xxxxxxxxxx Avenue
95 1 00 X. 0xx Xx. Owners Corp. 00 Xxxx 0xx Xxxxxx
99 2 Branford Hills Apartments 00 Xxxxxxxx Xxxx
107 1 30-34 Xxxxxxxx Owners Corp. 00-00 Xxxxxxxx Xxxxxx
133 1 000 Xxxxx Xxxx Owners, Inc. 000 Xxxxx Xxxx
135 1 Broadway 111 Owners Corp. 000 Xxxx 000xx Xxxxxx
140 1 150 East 93 Corp. 000 Xxxx 00xx Xxxxxx
142 2 Elmhurst Towers Apartments, Inc. 00-00 00xx Xxxxxx
000 0 Xxxxxxxx Xxxxx 1068 High Mountain Road
150 1 A&F Service Center 0000-0000 Xxxxxxxx Xxxxxxxx Xxxx
180 2 Fairfield Views Inc. a/k/a Fairfield Views, Inc. 0000 Xxxxxxxxx Xxxxxx
190 1 222 East 80 Corp. 000 Xxxx 00xx Xxxxxx
196 1 Ocean Harbor Club Owners, Inc. 0 Xxxx Xxxxxx
000 0 Xxx Xxxxxxxx Village Owner's Corp. Xxxxxxx Xxxxxx Xxxxx
000 0 0 Xxxxxxxxxx Xxxx Owners, Inc. 0 Xxxxxxxxxx Xxxx
216 2 0000 Xxxx Xxxxxx Associates 0000 Xxxx Xxxxxx
224 2 770 Owners Corp. 000 Xxxxx Xxxxxxx
233 2 Xxxxx St. Gardens, Inc. 000 Xxxxx Xxxxxx
236 1 Regency Park Owners Corp. 00 Xxxx Xxxxxx
239 1 000 Xxxx 00xx Xxxxxx, Inc. 000 Xxxx 00xx Xxxxxx
242 1 Bentwater Retail Village, LLC 3732 & 0000 Xxxxxxxxxx Xxxx
244 1 Bethel Office Buildings
244a 1 Bethel Office Building #1 0000 Xxxx Xxxx Xxxxxxx
244b 0 Xxxxxx Xxxxxx Xxxxxxxx #0 0000 Xxxx Xxxx Xxxxxxx
275 1 16872 East 90 Corp. 000-000-000 East 00xx Xxxxxx
278 2 0000 Xxxxxxx Xxxxxx Owners, Inc. 0000 Xxxxxxx Xxxxxx
279 1 Grooster Corp. 22 & 00 Xxxxxxx Xxxxxx
280 2 000 Xxxxxx X Owners Corp. 000 Xxxxxx X
000 0 Xxxxxx Xxxx Xxxx Apartments, LLC 0000 Xxxxxx Xxxxx
291 1 588 Apartments Corp. 000 Xxxx Xxx Xxxxxx
293 1 682 Tenant Corporation 000 Xxxxxxxx
295 2 Ocean Xxx Realty Corp. 1916 Avenue K
298 2 Parkview Apartments 0000 Xxxxx Xxxxx
000 0 Xxx Xxxx Apartments 0000 XxXxxx Xxxxxx
305 1 Timuquana Oaks Center 0000 Xxxxxxxxx Xxxx
306 2 Autumn Trace Apartments 0000 Xxxxx Xxxxx Xxxx
307 2 Fairfield Tenant Corp. 0000 Xxxxxxxxx Xxxxxx
308 2 Sherwood Village Cooperative A, Inc. 00-00 00xx Xxxxxx
000 0 Xxxxxx Xxxxx Housing Corporation 000 Xxxxxxxxx Xxxxxx
311 1 Ipswich House, Inc. 00 Xxxxxxx Xxxxxx
313 2 0000 Xxxxxx Xxxxxx Owners Corp. 0000 Xxxxxx Xxxxxx
316 1 340 West Owners Corp. 000 Xxxx 00xx Xxxxxx
326 1 222 Bowery Owners Corp. 222 Bowery
330 1 Advance Auto Parts 0000 Xxxxxxx Xxxx
332 2 Kings Landing Apartments 000 Xxxxx Xxxxx Xxxx
333 2 Summit House, Inc. 000 Xxxxxx Xxxxxx
334 2 0000 Xxxxx Xxxxxx Owners Corp. 0000 Xxxxx Xxxxxx
337 1 523-533 Tenants Corp. 000-000 Xxxx 00xx Xxxxxx
339 2 Cambridge House Tenants Corporation Xxx Xxxxx Xxxxx
000 0 Xxxxxxx Xxxx Manor Tenant Corp. 00 Xxx Xxxxxx and 00 Xxxxxxx Xxxxxx
343 1 Prince Lofts, Inc. 000 Xxxxxx Xxxxxx
345 2 Xxxxxxx Heights Apts 000 Xxxxxxx Xxxx
000 0 Xxxxxx Xxxx Apartments 000 Xxxxx Xxxxx Xxxxxxxxx
351 1 000 Xxxx 00xx Xxxxxx Corporation 000 Xxxx 00xx Xxxxxx
352 1 00 Xxxxxxxxx Xxxx Xxxx Owners, Inc. 00 Xxxxxxxxx Xxxx Xxxx
000 1 111 West 11 Corp. 000 Xxxx 00xx Xxxxxx
354 1 000 Xxxx 00xx Xxxxxx Owners Corp. 000 Xxxx 00xx Xxxxxx
355 1 Xxxxxxxx Cabot Apartments, Inc. 0-0 Xxxxx Xxxxx
356 2 00-00 000xx Xx. Owners, Inc. 00-00 000xx Xxxxxx
358 1 Tribeca Tower Inc. 000 Xxxxxxxxxx Xxxxxx
359 2 Fountain Manor Estates, Incorporated 0000 Xxxxxx Xxxxxx
360 2 Ivydene Co-Op, Inc. 000 Xxxxxx Xxxxx
Xxxxx/
Xx. Ft./ Orig
Zip Property Rooms/ Original Cut-off Amort.
# City County State Code Type Pads Balance Balance (1) Term
---- ---------------- -------------- ----- ----- ----------- -------- ----------- ----------- -------------
00 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 201 $18,500,000 $18,500,000 Xxxxxxxx Xxxx
00 Xxxxxx Xxxxxxxx XX 00000 Mixed Use 651,901 $18,350,000 $18,118,394 180
85 Baltimore Xxxxxxxxx Xxxx XX 00000 Mixed Use 152,425 $9,000,000 $8,993,023 360
87 Xxxxxxxxx Xxxxx XX 00000 Multifamily 457 $8,250,000 $8,244,232 480
95 New York Xxx Xxxx XX 00000 Multifamily 145 $7,500,000 $7,481,056 360
99 Branford Xxx Xxxxx XX 00000 Multifamily 108 $7,100,000 $7,100,000 360
000 Xxxx Xxxx Xxxxxx XX 00000 Multifamily 147 $6,300,000 $6,296,188 480
133 Scarsdale Xxxxxxxxxxx XX 00000 Multifamily 344 $5,000,000 $4,987,371 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 147 $4,900,000 $4,898,601 720
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 64 $4,500,000 $4,500,000 Interest Only
000 Xxxxxxxx Xxxxxx XX 00000 Multifamily 161 $4,500,000 $4,492,462 360
000 Xxxxx Xxxxxxx Xxxxxxx XX 00000 Retail 36,303 $4,500,000 $4,479,212 360
000 Xxxxxxxx XxXxxx XX 00000 Retail 57,500 $4,155,000 $4,139,509 300
000 Xxxxxxxxx Xxxxx XX 00000 Multifamily 106 $3,600,000 $3,597,483 480
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 90 $3,400,000 $3,400,000 Interest Only
000 Xxxxxxxxx Xxxxxx XX 00000 Multifamily 92 $3,200,000 $3,194,315 480
000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000 Multifamily 100 $3,000,000 $2,989,242 360
215 Bronxville Xxxxxxxxxxx XX 00000 Multifamily 99 $2,800,000 $2,791,751 360
000 Xxxxxxxxxxx Xxxxxxxx XX 00000 Multifamily 112 $2,800,000 $2,782,758 240
000 Xxxxxxxx Xxxxx XX 00000 Multifamily 99 $2,600,000 $2,596,968 480
000 Xxxxxxxx Xxxxxx XX 00000 Multifamily 65 $2,500,000 $2,496,198 480
000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Multifamily 65 $2,475,000 $2,473,400 480
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 53 $2,400,000 $2,400,000 Xxxxxxxx Xxxx
000 Xxxxxxx Xxxxxxxx XX 00000 Retail 15,927 $2,350,000 $2,342,713 360
244 $2,300,000 $2,298,496 000
000x Xxxxxxxxx Xxxxxxxxx XX 00000 Office 16,814 $1,403,000 $1,402,082
000x Xxxxxxxxx Xxxxxxxxx XX 00000 Office 10,848 $897,000 $896,413
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 28 $1,850,000 $1,850,000 Interest Only
000 Xxxxx Xxxxx XX 00000 Multifamily 61 $1,750,000 $1,748,902 480
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 14 $1,750,000 $1,747,167 360
000 Xxxxxxxx Xxxxx XX 00000 Multifamily 65 $1,750,000 $1,745,320 360
286 Xxxxxxxxxx Xxxxxxx XX 00000 Multifamily 120 $1,700,000 $1,698,696 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 62 $1,650,000 $1,643,781 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 17 $1,625,000 $1,624,420 480
000 Xxxxxxxx Xxxxx XX 00000 Multifamily 59 $1,600,000 $1,600,000 360
298 Xxxxx Xxxx XX 00000 Multifamily 80 $1,600,000 $1,598,790 360
300 Jacksonville Xxxxx XX 00000 Multifamily 38 $1,600,000 $1,597,458 360
305 Jacksonville Xxxxx XX 00000 Retail 14,234 $1,500,000 $1,498,881 360
306 Xxxxx Xxxx XX 00000 Multifamily 72 $1,500,000 $1,498,865 360
000 Xxxxx Xxxxx XX 00000 Multifamily 55 $1,500,000 $1,496,258 300
000 Xxxxxx Xxxxxx XX 00000 Multifamily 66 $1,450,000 $1,449,177 480
309 Yonkers Xxxxxxxxxxx XX 00000 Multifamily 70 $1,400,000 $1,400,000 360
311 Great Neck Xxxxxx XX 00000 Multifamily 49 $1,400,000 $1,396,123 360
000 Xxxxxxxxx Xxxxx XX 00000 Multifamily 107 $1,350,000 $1,349,052 480
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 25 $1,325,000 $1,324,156 480
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 8 $1,200,000 $1,198,200 360
000 Xxxxxxxxx Xxxxxxxxx XX 00000 Retail 7,000 $1,150,000 $1,148,437 360
332 Kingsland Xxxxxx XX 00000 Multifamily 48 $1,000,000 $999,244 360
000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Multifamily 144 $1,000,000 $998,925 480
000 Xxxxxxxx Xxxxx XX 00000 Multifamily 54 $1,000,000 $996,828 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 54 $939,000 $937,520 360
000 Xxxxx Xxxx Xxxxx Xxxxxx XX 00000 Multifamily 33 $900,000 $898,528 360
341 Yonkers Xxxxxxxxxxx XX 00000 Multifamily 30 $850,000 $846,915 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 7 $800,000 $800,000 Interest Only
000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Multifamily 52 $800,000 $799,383 360
347 Kingsland Xxxxxx XX 00000 Multifamily 32 $750,000 $749,433 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 15 $700,000 $696,280 240
352 Yonkers Xxxxxxxxxxx XX 00000 Multifamily 26 $625,000 $623,406 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 18 $600,000 $596,569 240
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 12 $500,000 $500,000 Interest Only
000 Xxxxxxxxxx Xxxxxxxxxxx XX 00000 Multifamily 33 $500,000 $499,612 360
356 Flushing Xxxxxx XX 00000 Multifamily 28 $500,000 $498,602 360
000 Xxx Xxxx Xxx Xxxx XX 00000 Multifamily 11 $350,000 $345,018 180
359 Los Angeles Xxx Xxxxxxx XX 00000 Multifamily 20 $250,000 $249,792 360
000 Xxxxxxxxx Xxxxxxxxx XX 00000 Multifamily 12 $175,000 $172,960 120
Rem. Orig Rem. Net First
Amort. Term to Term to Interest Interest Interest Calculation Monthly Payment
# Term (1) Maturity (2) Maturity (1) (2) Rate Rate (30/360 / Actual/360) Payment (3) Date
---- ------------- ------------ ---------------- -------- -------- --------------------- ----------- ---------
48 Interest Only 120 118 6.170% 6.089% Actual/360 $96,442 8/1/2006
51 176 180 176 6.600% 6.519% Actual/360 $160,859 6/1/2006
85 359 120 119 6.250% 6.169% Actual/360 $55,415 9/1/2006
87 478 120 118 5.920% 5.839% Actual/360 $44,933 8/1/2006
95 357 120 117 6.230% 6.149% Actual/360 $46,081 7/1/2006
99 360 120 119 6.150% 6.069% Actual/360 $43,255 9/1/2006
107 478 180 178 6.210% 6.129% Actual/360 $35,590 8/1/2006
133 357 120 117 6.230% 6.149% Actual/360 $30,721 7/1/2006
135 718 120 118 5.990% 5.909% 30/360 $25,157 8/1/2006
140 Interest Only 120 118 6.070% 5.989% Actual/360 $23,079 8/1/2006
142 358 120 118 5.970% 5.889% Actual/360 $26,893 8/1/2006
143 355 120 115 5.910% 5.829% Actual/360 $26,720 5/1/2006
150 297 120 117 6.410% 6.329% Actual/360 $27,822 7/1/2006
180 478 120 118 5.920% 5.839% Actual/360 $19,607 8/1/2006
190 Interest Only 120 118 6.090% 6.009% Actual/360 $17,495 8/1/2006
196 476 120 116 5.610% 5.529% Actual/360 $16,745 6/1/2006
207 356 120 116 5.910% 5.829% Actual/360 $17,813 6/1/2006
215 357 120 117 5.570% 5.489% Actual/360 $16,021 7/1/2006
216 237 240 237 6.490% 6.409% 30/360 $20,860 7/1/2006
224 477 120 117 6.030% 5.949% Actual/360 $14,360 7/1/2006
233 476 120 116 6.000% 5.919% Actual/360 $13,755 6/1/2006
236 478 120 118 6.080% 5.999% Actual/360 $13,756 8/1/2006
239 Interest Only 120 116 5.740% 5.659% Actual/360 $11,639 6/1/2006
242 356 120 116 6.500% 6.419% Actual/360 $14,854 6/1/2006
244 359 120 119 6.850% 6.769% Actual/360 $15,071 9/1/2006
244a
244b
275 Interest Only 120 118 6.170% 6.089% Actual/360 $9,644 8/1/2006
278 478 120 118 6.140% 6.059% Actual/360 $9,800 8/1/2006
279 358 120 118 6.100% 6.019% Actual/360 $10,605 8/1/2006
280 357 180 177 5.990% 5.909% Actual/360 $10,481 7/1/2006
286 359 120 119 6.290% 6.209% Actual/360 $10,511 9/1/2006
291 356 120 116 5.700% 5.619% Actual/360 $9,577 6/1/2006
293 479 120 119 5.870% 5.789% Actual/360 $8,794 9/1/2006
295 360 120 118 6.160% 6.079% Actual/360 $9,758 8/1/2006
298 359 120 119 6.340% 6.259% Actual/360 $9,945 9/1/2006
300 358 120 118 6.170% 6.089% Actual/360 $9,768 8/1/2006
305 359 120 119 6.390% 6.309% Actual/360 $9,373 9/1/2006
306 359 120 119 6.340% 6.259% Actual/360 $9,324 9/1/2006
307 298 120 118 6.130% 6.049% Actual/360 $9,784 8/1/2006
308 478 120 118 6.330% 6.249% Actual/360 $8,314 8/1/2006
309 360 120 120 6.040% 5.959% Actual/360 $8,430 10/1/2006
311 357 120 117 5.840% 5.759% Actual/360 $8,250 7/1/2006
313 478 120 118 5.910% 5.829% Actual/360 $7,343 8/1/2006
316 478 120 118 6.110% 6.029% Actual/360 $7,392 8/1/2006
326 358 120 118 6.380% 6.299% Actual/360 $7,490 8/1/2006
330 358 120 118 6.730% 6.649% Actual/360 $7,444 8/1/2006
332 359 120 119 6.340% 6.259% Actual/360 $6,216 9/1/2006
333 477 120 117 6.230% 6.149% Actual/360 $5,663 7/1/2006
334 356 120 116 6.410% 6.329% Actual/360 $6,262 6/1/2006
337 358 120 118 6.200% 6.119% Actual/360 $5,751 8/1/2006
339 358 120 118 6.060% 5.979% Actual/360 $5,431 8/1/2006
341 356 120 116 5.860% 5.779% Actual/360 $5,020 6/1/2006
343 Interest Only 120 118 6.260% 6.179% Actual/360 $4,231 8/1/2006
345 359 120 119 6.270% 6.189% Actual/360 $4,936 9/1/2006
347 359 120 119 6.340% 6.259% Actual/360 $4,662 9/1/2006
351 237 240 237 7.120% 7.039% Actual/360 $5,478 7/1/2006
352 357 120 117 6.190% 6.109% Actual/360 $3,824 7/1/2006
353 237 240 237 6.590% 6.509% Actual/360 $4,505 7/1/2006
354 Interest Only 120 118 6.370% 6.289% Actual/360 $2,691 8/1/2006
355 359 120 119 6.250% 6.169% Actual/360 $3,079 9/1/2006
356 357 120 117 5.800% 5.719% Actual/360 $2,934 7/1/2006
358 175 180 175 7.810% 7.729% Actual/360 $3,307 5/1/2006
359 359 180 179 6.920% 6.839% 30/360 $1,650 9/1/2006
360 118 120 118 6.890% 6.809% 30/360 $2,022 8/1/2006
Servicing
and
Maturity Letter of Ground Earthquake Environmental Trustee
# Date ARD (4) Lockout/Defeasance (5) Credit Lease Insurance (Y/N) Insurance (Y/N) Fees
---- -------- ------- ---------------------- --------- ------ --------------- --------------- ---------
48 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
51 5/1/2021 N/A Yes $0 N/A N/A Yes 0.080600%
85 8/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
87 7/1/2016 N/A Yes $0 N/A Yes N/A 0.080600%
95 6/1/2016 N/A No $0 N/A N/A N/A 0.080600%
99 8/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
107 7/1/2021 N/A No $0 N/A N/A N/A 0.080600%
133 6/1/2016 N/A No $0 N/A N/A N/A 0.080600%
135 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
140 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
142 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
143 4/1/2016 N/A Yes $0 N/A Yes N/A 0.080600%
150 6/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
180 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
190 7/1/2016 N/A Yes $0 N/A Yes N/A 0.080600%
196 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
207 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
215 6/1/2016 N/A No $0 N/A Yes N/A 0.080600%
216 6/1/2026 N/A No $0 N/A N/A N/A 0.080600%
224 6/1/2016 N/A No $0 N/A Yes N/A 0.080600%
233 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
236 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
239 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
242 5/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
244 8/1/2016 N/A Yes $0 0.080600%
244a $0 N/A Yes N/A
244b $0 N/A Yes N/A
275 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
278 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
279 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
280 6/1/2021 N/A No $0 N/A Yes N/A 0.080600%
286 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
291 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
293 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
295 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
298 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
300 7/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
305 8/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
306 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
307 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
308 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
309 9/1/2016 N/A No $0 N/A Yes N/A 0.080600%
311 6/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
313 7/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
316 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
326 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
330 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
332 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
333 6/1/2016 N/A No $0 N/A Yes N/A 0.080600%
334 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
337 7/1/2016 N/A No $0 N/A Yes N/A 0.080600%
339 7/1/2016 N/A Yes $0 N/A N/A N/A 0.080600%
341 5/1/2016 N/A No $0 N/A N/A N/A 0.080600%
343 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
345 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
347 8/1/2016 N/A No $0 N/A Yes N/A 0.080600%
351 6/1/2026 N/A Yes $0 N/A Yes N/A 0.080600%
352 6/1/2016 N/A No $0 N/A N/A N/A 0.080600%
353 6/1/2026 N/A Yes $0 N/A Yes N/A 0.080600%
354 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
355 8/1/2016 N/A No $0 N/A N/A N/A 0.080600%
356 6/1/2016 N/A No $0 N/A N/A N/A 0.080600%
358 4/1/2021 N/A No $0 N/A N/A N/A 0.080600%
359 8/1/2021 N/A No $0 N/A No N/A 0.080600%
360 7/1/2016 N/A No $0 N/A N/A N/A 0.080600%
# Loan Seller
---- -----------
48 NCB,FSB
51 NCB,FSB
85 NCB,FSB
87 NCB,FSB
95 NCB,FSB
99 NCB,FSB
107 NCB,FSB
133 NCB,FSB
135 NCB,FSB
140 NCB,FSB
142 NCB,FSB
143 NCB,FSB
150 NCB,FSB
180 NCB,FSB
190 NCB,FSB
196 NCB,FSB
207 NCB,FSB
215 NCB,FSB
216 NCB,FSB
224 NCB,FSB
233 NCB,FSB
236 NCB,FSB
239 NCB,FSB
242 NCB,FSB
244 NCB,FSB
244a NCB,FSB
244b NCB,FSB
275 NCB,FSB
278 NCB,FSB
279 NCB,FSB
280 NCB,FSB
286 NCB,FSB
291 NCB,FSB
293 NCB,FSB
295 NCB,FSB
298 NCB,FSB
300 NCB,FSB
305 NCB,FSB
306 NCB,FSB
307 NCB,FSB
308 NCB,FSB
309 NCB,FSB
311 NCB,FSB
313 NCB,FSB
316 NCB,FSB
326 NCB,FSB
330 NCB,FSB
332 NCB,FSB
333 NCB,FSB
334 NCB,FSB
337 NCB,FSB
339 NCB,FSB
341 NCB,FSB
343 NCB,FSB
345 NCB,FSB
347 NCB,FSB
351 NCB,FSB
352 NCB,FSB
353 NCB,FSB
354 NCB,FSB
355 NCB,FSB
356 NCB,FSB
358 NCB,FSB
359 NCB,FSB
360 NCB,FSB
(1) Assumes a Cut-off Date in September 2006.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) For mortgage loans classified as interest only, the monthly payments
represent the average of one full year of interest payments. For mortgage
loans with an initial interest only term, the monthly payments represent
the principal and interest payments du
(4) Anticipated Repayment Date.
(5) Yes means that defeasance is permitted notwithstanding the Lockout Period.
