EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 16, 2006
(this "Agreement"), is entered into between Countrywide Commercial Real Estate
Finance, Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Wachovia Bank, National
Association ("Wachovia") and KeyCorp Real Estate Capital Markets, Inc. ("KRECM")
as master servicers (each, in such capacity, a "Master Servicer"), KRECM as
special servicer (in such capacity, the "Special Servicer") and LaSalle Bank
National Association as trustee (the "Trustee"). Capitalized terms used but not
defined herein (including the schedules attached hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of June 16, 2006 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), KeyBanc
Capital Markets, a Division of McDonald Investments Inc. ("McDonald
Investments"), Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx"; Xxxxxxx Xxxxx, Countrywide Securities, McDonald
Investments, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, collectively, in such capacity,
the "Underwriters"), whereby the Purchaser will sell to the Underwriters all of
the Certificates that are to be registered under the Securities Act of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates"). The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of June 16,
2006 (the "Certificate Purchase Agreement"), with Xxxxxxx Xxxxx for itself and
as representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
$947,241,670 (the "Countrywide Mortgage Loan Balance") (subject to a variance of
plus or minus 5.0%) as of the close of business on the Cut-off Date, after
giving effect to any payments due on or before such date, whether or not such
payments are received. The Countrywide Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-off Date
(after giving effect to any payments due on or before such date, whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-off Date Pool Balance") of $1,841,447,787 (subject to a variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans shall take place
on June 28, 2006 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 98.96775% of the
Countrywide Mortgage Loan Balance as of the Cut-off Date, plus (ii) $4,201,331,
which amount represents the amount of interest accrued on the Countrywide
Mortgage Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the
Seller's receipt of the Purchase Consideration and the satisfaction or waiver of
the conditions to closing set forth in Section 5 of this Agreement (which
conditions shall be deemed to have been satisfied or waived upon the Seller's
receipt of the Purchase Consideration), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a
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"Mortgage File"). All Mortgage Files so delivered will be held by the Trustee in
escrow for the benefit of the Seller at all times prior to the Closing Date. The
Mortgage File with respect to each Mortgage Loan that is a Trust Mortgage Loan
shall contain the following documents:
(i) the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
LaSalle Bank National Association, as trustee for the registered holders
of ML-CFC Commercial Mortgage Trust 2006-2, Commercial Mortgage
Pass-Through Certificates, Series 2006-2, or in blank;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-2, Commercial Mortgage Pass-Through
Certificates, Series 2006-2, or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above) in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-2, Commercial Mortgage Pass-Through Certificates, Series 2006-2, or
in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable,
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binding commitment (which may be a pro forma policy or a marked version of
the policy that has been executed by an authorized representative of the
title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies or other evidence of filing of any
prior UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement assignment,
in form suitable for filing in favor of LaSalle Bank National Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-2, Commercial Mortgage Pass-Through Certificates, Series 2006-2, as
assignee, or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow
or reserve agreement, any security agreement, any management agreement,
any agreed upon procedures letter, any lockbox or cash management
agreements, any environmental reports or any letter of credit (which
letter of credit shall not be delivered in original from to the Trustee,
but rather to the applicable Master Servicer), in each case relating to
the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing
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Statement assignment shall reflect that the file copy thereof should be returned
to the Trustee following filing; provided, that in those instances where the
public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Recording/Filing Agent shall obtain
therefrom a certified copy of the recorded original. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans, (b) are
reasonably necessary for the ongoing administration and/or servicing of such
Mortgage Loans by the applicable Master Servicer in connection with its duties
under the Pooling and Servicing Agreement, and (c) are in the possession or
under the control of the Seller, together with all unapplied escrow amounts and
reserve amounts in the possession or under the control of the Seller that relate
to the Mortgage Loans, shall be delivered or caused to be delivered by the
Seller to the applicable Master Servicer (or, at the direction of such Master
Servicer, to the appropriate sub-servicer); provided that the Seller shall not
be required to deliver any draft documents, privileged or other communications,
credit underwriting, legal or other due diligence analyses, credit committee
briefs or memoranda or other internal approval documents or data or internal
worksheets, memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for each Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to
the applicable Master Servicer, the initial data (as of the Cut-off Date or the
most recent earlier date for which such data is available) contemplated by the
CMSA Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
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(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and the
Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for the Seller to
perform its duties and obligations under this Agreement, or (C) constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party or
by which the Seller is bound, which default might have consequences that
would, in the Seller's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Seller or its properties or materially and adversely affect its
performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
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(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by the
Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
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not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the applicable Master
Servicer for deposit into its Collection Account any Substitution Shortfall
Amount in connection therewith; provided, however, that, unless the Document
Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage,
if such Document Defect or Breach is capable of being cured but not within such
90-day period and the Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, the Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or substitute the related Mortgage Loan (which, for purposes of
such repurchase or substitution, shall include an REO Loan)); and provided,
further, that with respect to such additional 90-day period, the Seller shall
have delivered an officer's certificate to the Trustee setting forth the
reason(s) such Document Defect or Breach is not capable of being cured within
the initial 90-day period and what actions the Seller is pursuing in connection
with the cure thereof and stating that the Seller anticipates that such Document
Defect or Breach will be cured within the additional 90-day period; and
provided, further, that no Document Defect (other than with respect to the
Specially Designated Mortgage Loan Documents) shall be considered to materially
and adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters
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immediately preceding such repurchase or substitution, and (2) the weighted
average loan to-value ratio for the remaining Crossed Loans, determined at the
time of repurchase or substitution, based upon an appraisal obtained by the
Special Servicer at the expense of the Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan determined at the time of repurchase or substitution,
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller; provided, that if such debt service coverage and loan-to-value criteria
are satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Trustee, at the expense
of the Seller, of an Opinion of Counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (ii) the
consent of the Controlling Class Representative (if one is then acting), which
consent shall not be unreasonably withheld or delayed. In the event that one or
more of such other Crossed Loans satisfy the aforementioned criteria, the Seller
may elect either to repurchase or substitute for only the affected Crossed Loan
as to which the related Document Defect or Breach exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Loan Group. All
documentation relating to the termination of the cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at the expense
of the Seller and, where required, with the consent of the related Mortgagor.
For a period of two years from the Closing Date, so long as there remains any
Mortgage File relating to a Mortgage Loan as to which there is any uncured
Document Defect or Breach known to the Seller, the Seller shall provide, once
every ninety days, the officer's certificate to the Trustee described above as
to the reason(s) such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; provided, however, that, without limiting
the effect of the foregoing provisions of this Section 3(c), if such Document
Defect or Breach shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein
(subject to the second and third provisos in the sole sentence of the preceding
paragraph), the Seller shall in all cases on or prior to the second anniversary
of the Closing Date either cause such Document Defect or Breach to be cured or
repurchase or substitute for the affected Mortgage Loan. The delivery of a
commitment to issue a policy of lender's title insurance as described in
representation 8 set forth on Schedule I hereto in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
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If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee or the Trust
Fund in connection with such release, (ii) the remaining Mortgaged Property(ies)
satisfy the requirements, if any, set forth in the Mortgage Loan documents and
the Seller provides an opinion of counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any
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fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller. Notwithstanding the prior provisions of this
paragraph, the Seller, acting in its sole discretion, may effect a repurchase or
substitution (in accordance with the provisions of this Section 3(c) setting
forth the manner in which a Mortgage Loan may be repurchased or substituted) of
a Mortgage Loan, as to which representation 30 set forth on Schedule I has been
breached, in lieu of paying the costs and expenses that were the subject of the
breach of representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the applicable Master Servicer's
Collection Account, and, if applicable, the delivery of the Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
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SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for the Purchaser to perform its duties
and obligations under this Agreement or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound, which
default might have consequences that would, in the Purchaser's reasonable and
good faith judgment, materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
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(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Austin LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the applicable Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and such Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
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(f) One or more letters from the independent accounting firms of
Ernst & Young LLP and PricewaterhouseCoopers LLP, in form satisfactory to the
Purchaser and relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus (as defined in Section 6(d) of this
Agreement) and Prospectus Supplement (as defined in Section 6(d) of this
Agreement), respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of June 16, 2006,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., KeyBank National
Association, the Purchaser, the Underwriters and the Initial Purchasers. Both
parties agree to use their best reasonable efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the agreement(s) pursuant to which the servicing rights with
respect to the Mortgage Loans are being sold to the applicable Master Servicer;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his/her
attention that would lead him/her to believe that the Specified Portions of the
Free Writing Prospectus, as of the Time of Sale or as of the Closing Date,
included or include any untrue statement of a material fact relating to the
Mortgage Loans or omitted or omit to state therein a material fact necessary in
order to make the statements therein relating to the Mortgage Loans, in light of
the circumstances under which they were made, not misleading, (ii) such
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officer has carefully examined the Specified Portions (as defined below) of the
Prospectus Supplement and nothing has come to his/her attention that would lead
him/her to believe that the Specified Portions of the Prospectus Supplement, as
of the date of the Prospectus Supplement or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, and (iii) such officer
has carefully examined the Specified Portions (as defined below) of the
Memorandum (pursuant to which certain classes of the Private Certificates are
being privately offered) and nothing has come to his/her attention that would
lead him/her to believe that the Specified Portions of the Memorandum, as of the
date thereof or as of the Closing Date, included or include any untrue statement
of a material fact relating to the Mortgage Loans or omitted or omit to state
therein a material fact necessary in order to make the statements therein
related to the Mortgage Loans, in the light of the circumstances under which
they were made, not misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 (as contained in each of the June 8, 2006 Free Writing
Prospectus and the June 15, 2006 Free Writing Prospectus) thereto, entitled
"Certain Characteristics of the Mortgage Loans" (insofar as the information
contained in Annex A-1 relates to the Mortgage Loans sold by the Seller
hereunder), Annex A-2 to the Free Writing Prospectus, entitled "Certain
Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Free Writing Prospectus entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Free Writing Prospectus, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the CD-ROM which
accompanies the Free Writing Prospectus (insofar as such CD-ROM is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Free Writing Prospectus (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and exclusive of
any statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Offering Prospectus--Relevant Parties--Sponsors/Mortgage Loan
Sellers", "Summary of Offering Prospectus--The Mortgage Loans and the Mortgaged
Real Properties", "Risk Factors--Risks Related to the Mortgage Loans",
"Description of the Mortgage Pool" and "Transaction Participants--The Sponsors".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Description of the
Ten Largest Mortgage Loans or Groups of Cross-Collateralized Mortgage Loans"
(insofar as the information contained in Annex C relates to the Mortgage
15
Loans sold by the Seller hereunder), the CD-ROM which accompanies the Prospectus
Supplement (insofar as such CD-ROM is consistent with Annex X-0, Xxxxx X-0
and/or Annex B), and the following sections of the Prospectus Supplement (only
to the extent that any such information relates to the Seller or the Mortgage
Loans sold by the Seller hereunder and exclusive of any statements in such
sections that purport to describe the servicing and administration provisions of
the Pooling and Servicing Agreement and exclusive of aggregated numerical
information that includes the Other Mortgage Loans): "Summary of Prospectus
Supplement--Relevant Parties--Sponsors/Mortgage Loan Sellers", "Summary of
Prospectus Supplement--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Mortgage Loans", "Description of the
Mortgage Pool" and "Transaction Participants--The Sponsors".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated June
8, 2006 (the "June 8, 2006 Free Writing Prospectus"), and relating to the
Publicly-Offered Certificates, as supplemented and amended that certain free
writing prospectus (the first two (2) pages of which are attached hereto as
Schedule III) distributed to potential investors in the Publicly-Offered
Certificates on June 15, 2006 (the "June 15, 2006 Free Writing Prospectus"),
which free writing prospectus consists of a revised version of Annex A-1 to the
June 8, 2006 Free Writing Prospectus;
"Memorandum" means the confidential Private Placement Memorandum
dated June 16, 2006, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 5 , 2006.
"Prospectus Supplement" means the prospectus supplement dated June
16, 2006, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means June 16, 2006, at 2:30 p.m.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws of the Seller, and (iii) a certificate of good standing
of the Seller issued by the State of California not earlier than thirty (30)
days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
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(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated,
both the Seller and the Purchaser shall pay their respective share of the
transaction expenses incurred in connection with the transactions contemplated
herein as set forth in the closing statement prepared by the Purchaser and
delivered to and approved by the Seller on or before the Closing Date, and in
the memorandum of understanding to which the Seller and the Purchaser (or an
affiliate thereof) are parties with respect to the transactions contemplated by
this Agreement.
SECTION 8. Grant of a Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 of this Agreement be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller. However, if, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Seller, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller, and (b) (i) this
Agreement shall also be deemed to be a security agreement within the meaning of
Article 9 of the UCC of the applicable jurisdiction; (ii) the conveyance
provided for in Section 2 of this Agreement shall be deemed to be a grant by the
Seller to the Purchaser of a security interest in all of the Seller's right,
title and interest in and to the Mortgage Loans, and all amounts payable to the
holder of the Mortgage Loans in accordance with the terms thereof, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation,
all amounts, other than investment earnings (other than investment earnings
required by Section 3.19(a) of the Pooling and Servicing Agreement to offset
Prepayment Interest Shortfalls), from time to time held or invested in the
applicable Master Servicer's Collection Account, the Distribution Account or, if
established, the REO Account whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 of this Agreement shall
be deemed to be an assignment of any security interest created hereunder; (iv)
the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
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SECTION 9. Notice of Exchange Act Reportable Events. The
Seller hereby agrees to deliver to the Purchaser any disclosure information
relating to any event, specifically relating to the Seller, reasonably
determined in good faith by the Purchaser as required to be reported on Form
8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting reasonably
appropriate for inclusion in such form) insofar as such disclosure is required
under Item 1117 or 1119 of Regulation AB or Item 1.03 to Form 8-K. The Seller
shall use reasonable efforts to deliver proposed disclosure language relating to
any event, specifically relating to the Seller, described under Item 1117 or
1119 of Regulation AB or Item 1.03 to Form 8-K to the Purchaser as soon as
reasonably practicable after the Seller becomes aware of such event and in no
event more than two business days following the occurrence of such event if such
event is reportable under Item 1.03 to Form 8-K. The obligation of the Seller to
provide the above referenced disclosure materials in any fiscal year of the
Trust will terminate upon the Trustee's filing a Form 15 with respect to the
Trust as to that fiscal year in accordance with Section 8.16 of the Pooling and
Servicing Agreement or the reporting requirements with respect to the Trust
under the Securities Exchange Act of 1934, as amended (the "1934 Act") have
otherwise automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section 9 will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the 1934 Act.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
either by certified mail (return receipt requested) or by courier service (proof
of delivery requested) and also by facsimile transmission to the intended
recipient at the "Address for Notices" specified for such party on Exhibit A
hereto, or as to either party, at such other address as shall be designated by
such party in a notice hereunder to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when received (in the case of a notice sent by mail or courier
service) or transmitted (in the case of a faxed notice), in each case given or
addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
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SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
that obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party that commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser
agree to execute and deliver such instruments and take such further actions as
the other party may, from time to time, reasonably request in order to
effectuate the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations
of the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the Purchaser, except that any person into which
the Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
19
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall
cooperate with Ernst & Young LLP and PricewaterhouseCoopers LLP in making
available all information and taking all steps reasonably necessary to permit
such accountants to deliver the letters required by the Underwriting Agreement
and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed
Loan Group is identified on the Mortgage Loan Schedule. For purposes of
reference, the Mortgaged Property that relates or corresponds to any of the
Mortgage Loans in a Crossed Loan Group shall be the property identified in the
Mortgage Loan Schedule as corresponding thereto. The provisions of this
Agreement, including, without limitation, each of the representations and
warranties set forth in Schedule I hereto and each of the capitalized terms used
herein but defined in the Pooling and Servicing Agreement, shall be interpreted
in a manner consistent with this Section 21. In addition, if there exists with
respect to any Crossed Loan Group only one original of any document referred to
in the definition of "Mortgage File" in this Agreement and covering all the
Mortgage Loans in such Crossed Loan Group, the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such Crossed Loan
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan.
[SIGNATURE PAGES TO FOLLOW]
20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
COUNTRYWIDE COMMERCIAL REAL ESTATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Officer in Charge of Commercial
Mortgage Securitization
COUNTRYWIDE MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
Countrywide Commercial Real Estate Finance, Inc.
0000 Xxxx Xxxxxxx XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Purchaser:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
Facsimile No.: 000-000-0000
and with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
Telecopier No.: (000) 000-0000
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to the Purchaser
or its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is, or shall be as of the Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in June 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent since the date
of origination of any Mortgage Loan, without giving effect to any applicable
grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in any event
subject, however, to the following (collectively, the "Permitted Encumbrances"):
(a) the lien for current real estate taxes, ground rents, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties; (b)
covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record and/or are referred to in the related lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy or a "marked-up" commitment binding upon the title insurer); (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment binding upon the title insurer); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Crossed Group; (g) if the related Mortgaged Property consists of one or
more units in a condominium, the related condominium declaration; and (h) the
rights of the holder of any Non-Trust Loan that is part of a related Loan
Combination to which any such Mortgage Loan belongs. The Permitted Encumbrances
do not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any Non-Trust Loan that is part of a related Loan Combination to which any
such Mortgage Loan belongs, and except that a license may have been granted to
the related Mortgagor to exercise certain rights and perform certain obligations
of the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession of the related Mortgaged Property to collect
the rents or provides for rents to be paid directly to the related mortgagee, if
there is an event of default beyond applicable notice and grace periods. Except
for the holder of the related Non-Trust Loan
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with respect to any Mortgage Loan that is part of a Loan Combination, no person
other than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Mortgagor has not been released from
its obligations under such Mortgage, in whole or in material part. With respect
to each Mortgage Loan, since the later of (a) June 1, 2006 and (b) the closing
date of such Mortgage Loan, the Seller has not executed any written instrument
that (i) impaired, satisfied, canceled, subordinated or rescinded such Mortgage
Loan, (ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance of
doubt, the preceding sentence does not relate to any release of escrows by the
Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal
I-3
amount of such Mortgage Loan after all advances of principal, insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the Permitted Encumbrances, except that in the case of a
Mortgage Loan as to which the related Mortgaged Property is made up of more than
one parcel of property, each of which is secured by a separate Mortgage, such
Mortgage (and therefore the related Title Policy) may be in an amount less than
the original principal amount of the Mortgage Loan, but is not less than the
allocated amount of subject parcel constituting a portion of the related
Mortgaged Property. Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole insured without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for whether, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available) that, (a) the related Mortgaged Property has access
to a public road, and (b) the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental
I-4
investigation conducted in connection with the origination of the related
Mortgage Loan related to asbestos-containing materials and lead-based paint),
(a) an environmental site assessment meeting ASTM standards and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the related Mortgaged Property, a transaction screen meeting
ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan
I-5
require the related Mortgagor to comply in all material respects with all
applicable federal, state and local environmental laws and regulations. Each of
the Mortgage Loans identified on Annex C hereto is covered by a secured creditor
environmental insurance policy and each such policy is noncancellable during its
term, is in the amount at least equal to 125% of the principal balance of the
Mortgage Loan, has a term ending no sooner than the date which is five years
after the maturity date of the Mortgage Loan to which it relates and either does
not provide for a deductible or the deductible amount is held in escrow and all
premiums have been paid in full. Each Mortgagor represents and warrants in the
related Mortgage Loan documents that except as set forth in certain
environmental reports and to its knowledge it has not used, caused or permitted
to exist and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor (or
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, out-of-pocket expenses and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the
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equivalent) policy, in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the full insurable
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property is
also covered by comprehensive general liability insurance in amounts customarily
required by prudent commercial mortgage lenders for properties of similar types.
Each Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which is reasonably estimated
to cover no less than twelve (12) months of rental income), unless such
Mortgaged Property constitutes a manufactured housing community. If any portion
of the improvements on a Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the full
insurable value of the related Mortgaged Property or (2) the maximum amount of
insurance available. Each Mortgaged Property located in California or in seismic
zones 3 and 4 is covered by seismic insurance to the extent such Mortgaged
Property has a probable maximum loss of greater than twenty percent (20%) of the
replacement value of the related improvements, calculated using methodology
acceptable to a reasonably prudent commercial mortgage lender with respect to
similar properties in the same area or earthquake zone. Each Mortgaged Property
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas is insured by
windstorm insurance in an amount at least equal to the lesser of (i) the
outstanding principal balance of the related Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located on such Mortgaged
Property (less physical depreciation). All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without at least ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. Additionally, for any Mortgage Loan having a Cut-off
Date Balance equal to or greater than $20,000,000, the insurer for all of the
required coverages set forth herein has a claims paying ability or financial
strength rating from S&P or Xxxxx'x of not less than A-minus (or the
equivalent), or from A.M. Best Company of not less than "A-minus: V" (or the
equivalent) and, if rated by Fitch, of not less than "A-" from Fitch (or the
equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the related mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan documents for each Mortgage Loan
provide that proceeds paid under any such casualty insurance policy will (or, at
the lender's option, will) be applied either to the repair or restoration of all
or part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining after
the repair or restoration of the related
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Mortgaged Property or payment of amounts due under the Mortgage Loan; and
provided, further, that, if the related Mortgagor holds a leasehold interest in
the related Mortgaged Property, the application of such proceeds will be subject
to the terms of the related Ground Lease (as defined in representation 18
below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is
a debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be
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encumbered by the related Mortgage; and there has been no material change
in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
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(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the
payment of the outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds,
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whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
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25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Crossed Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price in connection
therewith; and provided, further, that certain Crossed Groups or individual
Mortgage Loans secured by multiple parcels may permit the related Mortgagor to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
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30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan documents provide that the
related Mortgagor is responsible for the payment of all reasonable costs and
expenses associated with defeasance incurred by the related mortgagee, including
Rating Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan documents provide that the related Mortgagor is responsible for
all reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that
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it has its own books and records and accounts separate and apart from any other
person, that it holds itself out as a legal entity (separate and apart from any
other person), that it will not guarantee or assume the debts of any other
person, that it will not commingle assets with affiliates, and that it will not
transact business with affiliates (except to the extent required by any cash
management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee. Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of
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such items or actions other than the filing or recording of UCC Financing
Statements are required in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
(identified on Annex D) that consists of a leasehold estate that is not a
material ground lease, which ground lease is not the subject of representation
18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as
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to disbursement of any funds escrowed for such purpose, which requirements were
to have been complied with on or before the date hereof, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal
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Standards Board of the Appraisal Foundation, all as in effect on the date the
Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
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ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
[Attached]
Note: The Mortgage Loans known as BTR Portfolio, identified on Annex A-1 by ID #
6, has an "Indemnity Deed of Trust" structure. The related borrower under such
Mortgage Loan executed and delivered the related note to the lender and is
obligated to make payments thereunder. The related property owner for such
Mortgage Loan has guaranteed all amounts payable by the borrower under the
related note, which guaranty is secured by an indemnity deed of trust in favor
of the lender. With respect to the above referenced Mortgage Loan, certain of
the representations regarding the borrower refer to the property owner of the
related Mortgaged Property.
REP. 7 CONDITION OF PROPERTY; CONDEMNATION
Property 6.05 BTR CAPITAL PORTFOLIO - 000 XXXXX XXXX and Loan 156, BABIES "R" US
- SIMI VALLEY GROUND LEASE: no inspection or engineering assessment was
performed in connection with the origination of the mortgage loans.
REP. 8 TITLE INSURANCE
Loan 5, BLAIRSTONE OFFICE BUILDING: most of the Mortgaged Property is covered by
an ALTA lender's title insurance policy; however, 3.66% of the Mortgaged
Property (9,639 SF), which is subject to a separate office lease and is located
in a separate building, is not covered by an ALTA lender's title insurance
policy. The office lease, more particularly described in Section 18 of the
related loan documents, is not recorded and matures approximately one year and
seven months after the Maturity Date of the Mortgage Loan.
REP. 10 MORTGAGE PROVISIONS
All of the exceptions made to representation number 14 regarding terrorism
insurance are incorporated herein by reference as if made herein.
REP. 14 INSURANCE
With respect to VARIOUS COUNTRYWIDE LOANS (other than any exceptions herein to
the contrary), for so long as the Terrorism Risk Insurance Act of 2002 ("TRIA")
is in effect (including any extensions), the lender shall accept terrorism
insurance which covers against "covered acts" as defined by TRIA. In addition,
the borrower may only be required to maintain insurance covering for loss
resulting from perils of terrorism and acts of terrorism to the extent such
coverage is available at commercially reasonable rates.
Loan 0, XXXX XXXXXX XXXXXX & XXXXXXXXXX XXXXXX GARAGE: the borrower's obligation
to maintain coverage against perils of terrorism and acts of terrorism is
limited to the extent the applicable premiums for any year exceed an amount
equal to 150% of the premiums for such year for the insurance coverage required
under the property related section (7.1(a)) of the related loan agreement and
the business interruption insurance required under the related loan agreement
(sections 7.1(d)) (without giving effect to Section 7.1(g)) (the section
regarding terrorism insurance), and if the insurance coverage required under
Section 7.1(g) costs in excess of such amount, then the borrower, in
consultation with lender, shall only be required to purchase such lesser
coverage of the type required under Section 7.1(g) as shall be reasonably
acceptable to lender and the premiums for which (after taking into account any
and all applicable discounts and credits with respect thereto) are not in excess
of such amount.
Loan 3, 000 XXXX XXXXXX: for so long as the TRIA is in effect (including any
extensions), the lender shall accept terrorism insurance which covers against
"covered acts" as defined by TRIA. If the TRIA is not in effect at any relevant
time, the borrower shall only be required to obtain the amount of terrorism
coverage that can be obtained at a price equal to two hundred percent (200%) of
the aggregate insurance premium payable with respect to all the insurance
coverage under required under the loan agreement for the prior policy year.
Loan 3, 000 XXXX XXXXXX: the loan documents (i) permit the borrower to obtain
insurance from Factory Mutual, provided its claims paying ability rating does
not fall below "BBB" by S&P and "AA-" by Fitch, (ii) provide that if an
insurance company complies with the S&P rating requirement ("AA" or better) and
S&P is a Rating Agency rating the securitization, but such insurer is not rated
by one or both of Fitch and Xxxxx'x, such insurer will be deemed acceptable by
the other Rating Agencies rating the securitization, (iii) permit the borrower
to maintain the insurance coverage with insurance companies which do not meet
the requirements specified in the representation (an "Otherwise Rated Insurer"),
provided the borrower obtains a "cut-through" endorsement (an endorsement which
permits recovery against the provider of such endorsement) with respect to any
Otherwise Rated Insurer from an insurance company that meets the claims paying
ability ratings required under the loan documents, and (iv) provide that if the
borrower desires to maintain the required insurance from an insurance company
that does not meet the claims paying ability ratings set in the loan documents
but the parent of such insurance company, which owns at least fifty-one percent
(51%) of such insurance company, maintains the required ratings, the borrower
may use such insurance companies if approved by the Rating Agencies (such
approval may be conditioned on items required by the Rating Agencies including a
requirement that the parent guarantee the obligations of such insurance
company).
Loan 5, BLAIRSTONE OFFICE BUILDING: at closing the Mortgaged Property was not
insured by windstorm insurance, but lender has the right to request such
insurance. The borrower may maintain (i) its all-risk and primary liability
coverage with Massachusetts Bay Insurance Company, provided the same is rated at
least "BBB" by S&P and "A-XII" by A.M. Best and (ii) its umbrella liability
coverage with Hanover Insurance Company, provided the same is rated at least
"BBB+" by S&P and "A-XII" by A.M. Best.
Loan 12, RADISSON HARBOR VIEW: if TRIA is not in effect, the borrower is
required to obtain the amount of terrorism coverage that could be obtained at a
price equal to 100% of the premium for
the then existing casualty insurance policy required under the loan documents
(excluding the cost of terrorism coverage).
Loan 89, 00000 XXX XXX XXXXX: in connection with the purchase of terrorism
insurance, the borrower is required to obtain property insurance with terrorism
coverage but the premium for such coverage may not exceed 200% of the premium
required to purchase property insurance if terrorism coverage was not required.
Loan 106, LAGUARDIA DOLLAR RENT A CAR: since the collateral for the mortgage
loan is the land only (not the improvements), property insurance (including
terrorism) is not required to be maintained by the borrower.
Loan 000, XXXX XX XXXXXXX XXXXXXX: since the collateral for the mortgage loan is
the land only (not the improvements), property insurance (including terrorism)
is not required to be maintained by the borrower.
Loan 112 , BOEING CLEARLAKE: terrorism and business interruption insurance are
not required so long as the guarantor under the Mortgage Loan maintains a net
worth of at least $18,000,000, including liquid assets of at least $1,000,000.
Loan 145, TOWNE EAST VILLAGE: the lender accepted the borrower's current
insurance, which insurance included a co-insurance provision. The loan documents
provide that if required by the lender, the borrower will be obligated to obtain
replacement insurance without a co-insurance provision.
Loan 156, BABIES 'R' US -- SIMI VALLEY GROUND LEASE: since the collateral for
the Mortgage Loan is the land only (the tenant owns the building), the tenant is
entitled to all casualty insurance proceeds. So long as the tenant's lease is in
full force and effect, the borrower's only insurance obligation is to maintain
comprehensive general liability insurance.
Loan 000, XX XXXXXX XXXX CENTER: the borrower does not have terrorism insurance
on the Popeye's or Del Taco buildings, since the borrower does not own these
buildings. The buildings are on land owned by the borrower and ground leased to
the respective tenants. To the extent there is any damage or destruction to the
buildings that are not covered by terrorism insurance, such loss is a recourse
obligation of the borrower and the guarantor.
REP. 17 LOCAL LAW COMPLIANCE
Loan 106, LAGUARDIA DOLLAR RENT A CAR: the single tenant is currently using more
parking spaces at the Mortgaged Property than permitted under local zoning laws;
however, the tenant is in the process of attempting to obtain an amended
certificate of occupancy that would permit more parking spaces to be used at the
Mortgaged Property. The borrower did not obtain law and ordinance insurance.
Loan 000, XXXXX XXXXX XXXXXX--XXXXXXXXXX: the Mortgaged Property is
non-conforming as to setback requirements. The non-conformities range from .91
feet to 1.21 feet. The title policy includes an endorsement covering zoning
violations.
REP. 18 MATERIAL LEASEHOLD ESTATE
With respect to Loan 14, DOUBLETREE CLUB HOTEL: the lender is not required to be
named as additional insured and the lease does not provide that
insurance/condemnation proceeds be used to repair the Mortgaged Property or
repay the Mortgage Loan pursuant to the loan documents. Loss is payable to the
holder of any security interest in the improvements and the landlord, jointly.
REP. 23 OTHER MORTGAGE LIENS
Loans 141, 142, 152, 157, 160, 163, 166, 167, 182, and 000, XXX XXXXXXX-XXXXXX
XXXXXX, XXX STORAGE-RODD FIELD, AAA STORAGE-XXXXXXX, AAA STORAGE-XXXXX, AAA
STORAGE-XXXXXXXXXX AVENUE, AAA STORAGE-PEARLAND, AAA STORAGE-XXXXX, AAA
STORAGE-STORAGE XXXXXX, AAA STORAGE-BUDA, and AAA STORAGE-KATY SUPER STORAGE,
the related Mortgaged Properties may be encumbered by a junior mortgage lien
with the approval of lender and satisfaction of specific criteria including a
minimum debt service coverage ratio.
REP. 34 DUE-ON-SALE
With respect to ALL OF THE COUNTRYWIDE LOANS, without consent of the lender, the
loan documents permit transfers (i) of more than 49% of the total direct or
indirect equity interest in the borrower or any indirect or direct equity
interest that results in a change of control of the borrower, or (ii) of all or
substantially all of the Mortgaged Property, in each case, to another party (the
"Transferee Borrower"), provided that prior to such sale or transfer the
following conditions, among others, are met: (a) the payment of a transfer fee
(in most cases) by the borrower, (b) reasonable approval by the lender of the
identity, experience, financial condition, creditworthiness, single purpose
nature and bankruptcy remoteness of the Transferee Borrower and the replacement
guarantors and indemnitors, (c) the delivery of acceptable documentation as may
be reasonably required by the lender from the borrower, the Transferee Borrower,
guarantor and the replacement guarantors and indemnitors (including, without
limitation, assumption documents), (d) delivery of the opinion letters relating
to such transfer (including, without limitation, tax, bankruptcy and REMIC
opinions) in form and substance reasonably satisfactory to the lender in the
lender's reasonable discretion, (e) delivery of title endorsement acceptable to
the lender and (f) payment from the borrower of all reasonable expenses incurred
by the lender in connection with such transfer, including, without limitation,
the lender's reasonable attorneys fees and expenses, all recording fees, and all
fees payable to the Title Company for the delivery to lender of title
endorsements. With respect to CERTAIN OF THE COUNTRYWIDE LOANS, the loan
documents permit, without consent, transfers (x) among existing principals, even
if there is a change control or (y) that accommodate a 1031 exchange or reverse
1031.
In addition the Countrywide loan documents generally provide that in determining
whether the transfer of equity interests in the borrower is a permitted transfer
not requiring the lender's prior consent, such determination is made by looking
to transfers of "direct or indirect", "legal or beneficial equity interests"
(rather than solely a direct equity transfer in the borrower resulting in a
change of control under this Representation) and limits such transfers to an
aggregate 49% interest that does not result in a change of control of the
borrower. Also, the Countrywide loan documents permit transfers of non-material
leases or material leases that are approved by lender.
Loan 3, 000 XXXX XXXXXX: the following additional transfers are permitted: (i)
any transfer that results in Digital Realty Trust, Inc. ("Digital Inc.") owning
more than forty-nine percent (49%) of the total direct or indirect legal or
beneficial ownership interest in the borrower, if the borrower notifies lender
of such transfer at the time of such transfer and if required by lender, the
borrower provides to lender a new non-consolidation opinion reasonably
acceptable to lender and the rating agencies; (ii) any transfer of direct or
indirect partnership interests in Digital Realty Trust L.P. ("Digital LP"),
provided, among other things, following the transfer (A) Digital Inc. owns
directly or indirectly 100% of the interests in borrower and controls the
borrower, Digital Inc. is the general partner of Digital LP and owns at least
20% of Digital LP or (B) a "Permitted Transferee" (as such term is defined in
the loan documents) is the general partner and such Permitted Transferee
controls the borrower or (C) another person approved by lender and the Rating
Agencies owns 51% or more of Digital LP and controls Digital LP and the borrower
and (iii) transfers of limited partnership interests in Digital LP by Global
Innovation Partners to its members in proportion to the ownership held by such
members at the time of transfer.
Loan 14, DOUBLETREE CLUB HOTEL: "permitted transfers" include, among other
things, any transfer to a "Xxxxx Family SPE" (defined as an entity (i) in which
the guarantor and/or a family member of the guarantor, or trusts for the benefit
of any such persons (collectively, the "Xxxxx Family Group") own at least a
fifty-one percent (51%) of the direct or indirect equity interest in the
borrower, and (ii) which is controlled by one or more members of the Xxxxx
Family Group (a) having (directly, indirectly or by contract) commercial real
estate experience at least comparable to that of the current management of
Tarsadia, or (b) under contract with Tarsadia to manage the Mortgaged Property
(and Tarsadia is not then the subject of a bankruptcy or insolvency action))
provided the assumption conditions are satisfied and, if such transfer occurs
during the existence of an Event of Default, the "Xxxxx Assumption Conditions"
are satisfied (provided no such transfer occurs more than once per calendar
year). "Xxxxx Assumption Conditions" include, among other things, (1) no
Insolvency Action (as defined in the loan documents) exists; (2) the solvency
reps set forth on Schedule 2 of the loan agreement are true and correct; (3) no
breach under Section 6.3 (Change in Business) or Article 9 (Environmental
Provisions) has occurred and no material adverse environmental condition then
exists, (4) all Deed in Lieu Conditions (as defined in the loan agreement) have
been satisfied (or waived by the lender), and (5) all of the foregoing is
satisfied within 30 days after the lender notified the borrower of the existence
of an event of default.
Loan 16, GLADSTONE PORTFOLIO--OH & PA: Gladstone Commercial Limited Partnership
("GCLP"), the 100% member of each of the two LLC borrowers and the 99% limited
partner of the LP borrower, pledged its membership interests in the borrowers
(along with its interest in other property owners, either currently owned or to
be acquired) to a third-party lender in connection with an up to $75,000,000
credit facility. The mezzanine lender did not enter into an intercreditor
agreement; however, any change in control of the borrowers resulting from an
exercise of remedies by the third-party mezzanine lender under the pledge would
be an event of default under the Mortgage Loan.
Loan 000, XXXX XXXX XXXXXXX CENTER: the borrowers (consisting of two
individuals), are required to transfer their ownership interest in the Mortgaged
Property to a Special Purpose Entity within one year from the Mortgage Loan
origination date.
Loan 000, XXXXXXXX XXXXXXX XXXXXXXX XXXXXX: the borrower (consisting of non-SPE
individuals and/or entities), is permitted to transfer the Mortgaged Property to
a Georgia limited liability company composed of the individual borrowers on or
before December 31, 2007, subject to lender approval.
The following Mortgage Loans permit future mezzanine debt:
Loan 2, PENN MUTUAL TOWERS AND WASHINGTON SQUARE GARAGE: the intercreditor
agreement (executed in connection with the existing mezzanine loan) permits the
mezzanine borrowers to incur up to $2,500,000 of additional mezzanine debt from
the mezzanine lender if such additional amounts are necessary for items related
to litigation in connection with the proposed construction of a building
adjacent to the Mortgaged Property or for tenant improvements or leasing
commissions.
Loan 7, JEFFERSON BLOCK APARTMENTS: the loan documents permit the direct or
indirect parents of the borrower to incur mezzanine debt from the 60th month
following the Mortgage Loan origination date, subject to the following
conditions, including among others: (i) the combined Mortgage Loan and mezzanine
loan does not exceed 85% of the fair market value of the Mortgaged Property,
(ii) the aggregate debt service coverage ratio is at least 1.10:1, (iii)
execution and delivery of an acceptable intercreditor agreement and (iv)
confirmation from the rating agencies that the incurrence of the mezzanine loan
will not result in any qualification, withdrawal or downgrading of any existing
ratings of the Certificates.
Loan 14, DOUBLETREE CLUB HOTEL: the loan documents permit mezzanine debt,
subject to the following conditions, including among others: (i) the combined
Mortgage Loan and mezzanine loan does not exceed 85% of the fair market value of
the Mortgaged Property, (ii) the aggregate debt service coverage ratio is at
least 1.23x and (iii) execution and delivery of an acceptable intercreditor
agreement.
Loan 49, SUNSET VIEW APARTMENTS: the loan documents permit mezzanine debt,
subject to the following conditions, including among others: (i) the combined
Mortgage Loan and mezzanine loan does not exceed 85% of the fair market value of
the Mortgaged Property, (ii) the aggregate debt service coverage ratio is at
least 1.20x and (iii) execution and delivery of an acceptable intercreditor
agreement.
Loan 53, 000 XXXXXXX XXXX: mezzanine debt is permitted in connection with
construction by the borrower of improvements at the Mortgaged Property for the
Fosters Wine Merchant tenant, subject to the following conditions, including
among others: (i) the combined Mortgage Loan and mezzanine loan does not exceed
75% of the fair market value of the Mortgaged Property, (ii) the aggregate debt
service coverage ratio is at least 1.20x and (iii) execution and delivery of an
acceptable intercreditor agreement.
Loan 77, SAVERS PLAZA: the loan documents permit mezzanine debt, subject to the
following conditions, including among others: (i) the combined loan-to-value
ratio for the Mortgage Loan and mezzanine loan does not exceed 75%, (ii) the
aggregate debt service coverage ratio is at least 1.20x and (iii) execution and
delivery of an acceptable intercreditor agreement.
Loan 89, 00000 XXX XXX XXXXX: the loan documents permit mezzanine debt, subject
to the following conditions, including among others: (i) the combined
loan-to-value ratio for the Mortgage Loan and mezzanine loan does not exceed
75%, (ii) the aggregate debt service coverage ratio is at least 1.20x and (iii)
execution and delivery of an acceptable intercreditor agreement.
Loan 91, RESIDENCE INN MILWAUKEE XXXXXXXXX: the loan documents permit mezzanine
debt, subject to the following conditions, including among others: (i) the
combined loan-to-value ratio for the Mortgage Loan and mezzanine loan does not
exceed 80%, (ii) the aggregate debt service coverage ratio is at least 1.35x and
(iii) execution and delivery of an acceptable intercreditor agreement.
Loan 000, XXXXXXXXX XXXXXX XXXX: the loan documents permit mezzanine debt,
subject to the following conditions, including among others: (i) the combined
loan-to-value ratio for the Mortgage Loan and mezzanine loan does not exceed
90%, (ii) the aggregate debt service coverage ratio is at least 1.10x and (iii)
execution and delivery of an acceptable intercreditor agreement.
Loan 000, XXXXXXXX XXXXXXXXXX: the loan documents permit mezzanine debt, subject
to the following conditions, including among others: (i) the combined Mortgage
Loan and mezzanine loan does not exceed 80% of the fair market value of the
Mortgaged Property, (ii) the aggregate debt service coverage ratio is at least
1.35x and (iii) execution and delivery of an acceptable intercreditor agreement.
Loan 000, XXXXXXXXX XXXXXX XXXXX: the loan documents permit mezzanine debt,
subject to the following conditions, including among others: (i) the combined
Mortgage Loan and mezzanine loan does not exceed 80% of the fair market value of
the Mortgaged Property, (ii) the aggregate debt service coverage ratio is at
least 1.25x and (iii) execution and delivery of an acceptable intercreditor
agreement.
Xxxx 000, XXXXXXX XXXXXX: the loan documents permit mezzanine debt after
November 23, 2006, subject to the following conditions, including among others:
(i) the combined loan-to-value ratio for the Mortgage Loan and mezzanine loan
does not exceed 80%, (ii) the aggregate debt service coverage ratio is at least
1.10x and (iii) execution and delivery of an acceptable intercreditor agreement.
Loan 000, XXXXX XXXXXXX: the loan documents permit mezzanine debt, subject to
the following conditions, including among others: (i) the combined loan-to-value
ratio for the Mortgage Loan and mezzanine loan does not exceed 75%, (ii) the
aggregate debt service coverage ratio is at least 1.25x and (iii) execution and
delivery of an acceptable intercreditor agreement.
The following Mortgage Loans have existing mezzanine debt:
Loan 2, PENN MUTUAL TOWERS AND WASHINGTON SQUARE GARAGE: the direct parents of
the borrowers and their respective general partners have incurred $14,100,000 in
mezzanine debt secured by their ownership interest in the borrowers. The
mezzanine lender entered into an intercreditor agreement.
Loan 6, BTR CAPITAL PORTFOLIO: $14,700,000 mezzanine loan from Asset Capital
Partners, L.P.; an intercreditor agreement was executed.
Loan 24, SAM'S CLUB TIMONIUM: an equity owner of the borrower pledged its
interest in the borrower as security for a $2,000,000 mezzanine loan. An
intercreditor was executed.
Loan 75, THE CROSSINGS APARTMENTS: an equity owner of the borrower pledged its
interest in the borrower as security for a $539,120 mezzanine loan. An
intercreditor was executed.
Loan 000, XXXXXXX XXXX APARTMENTS: An equity owner of the borrower pledged its
interest in the borrower as security for a $425,000 mezzanine loan. An
intercreditor was executed.
The following Mortgage Loans borrowers have incurred unsecured subordinate debt:
Loan 70, 00 XXXX 00XX XXXXXX: shareholders of the borrower loaned $800,000 to
the borrower. The loan may only be repaid from excess cash flow and is subject
to a subordination and standstill agreement.
Loan 000, XXXXXXX XXXXX HOTEL: exists in an amount not to exceed $7,000,000,
subject to a subordination and standstill agreement.
The following Mortgage Loans permit unsecured subordinate debt:
Loan 000, XXXXXXX XXXXX: the borrower is permitted to incur additional unsecured
indebtedness, provided, among other things, (i) the combined indebtedness does
not exceed 85% of the fair market value of the Mortgaged Property, (ii) the
aggregate debt service coverage ratio (as defined in the loan documents) for the
trailing 12 month period is at least 1.10x, and projected for the 12 month
period following the date the additional debt is incurred (assuming it has been
fully advanced) is at least 1.10x, (iii) amounts advanced are to be used as
additional working capital in connection with the Mortgaged Property, and (iv)
lender has received a satisfactory subordination and standstill agreement.
REP. 35 SINGLE PURPOSE ENTITY
Loan 00, XXXXXXXX XXXXXXXX XXXXXX: the borrower is not a single purpose entity.
Loan 70, 00 XXXX 00XX XXXXXX: the shareholders of the borrower loaned the
borrower $800,000, which inter-company loan has been subordinated to the
Mortgage Loan pursuant to a subordination and standstill agreement. The
inter-company loan may only be repaid from excess cash flow.
Loan 000, XXXXXXX XXXXX HOTEL: the borrower has incurred unsecured subordinate
debt in an amount not to exceed $7,000,000, subject to a subordination and
standstill agreement.
REP. 43 RECOURSE
Loan 3, 000 XXXX XXXXXX: recourse guaranty does not include the physical waste
of the Mortgaged Property.
Loan 70, 00 XXXX 00XX XXXXXX: with respect to damages related to violations of
environmental laws, the loan documents provide that if the borrower obtains
environmental insurance, the guarantor will be relieved from its obligations
under the environmental indemnity.
Loan 101 and Loan 000, XXXXXXX XXX XXXXXXXX XXXXXXX AND HOLIDAY INN EXPRESS
GLENWOOD SPRINGS: each Mortgage Loan has a guaranty agreement with more than one
guarantor. Under the related guaranty agreements, (i) a guarantor will not be
liable to the extent such guarantor can demonstrate that the guaranteed
obligation arose out of the acts or omissions of another guarantor (the "Other
Guarantor") and (ii) a guarantor is liable only in proportion to its respective
percentage ownership interests in the related borrower. The guarantor denying
liability (1) has the burden of proving by clear and convincing evidence that
any liability for the guaranteed obligation was caused solely by the acts or
omissions of the Other Guarantor and (2) is required to defend with counsel
reasonably satisfactory to lender and indemnify and hold the lender harmless for
all related matters unless and until a court of competent jurisdiction finds
that such person denying liability has met such burden.
REP. 45 FEE SIMPLE INTEREST.
With respect to Loan 63, GULFSTREAM AEROSPACE BUILDING, the Mortgage Loan is
secured in whole or material part by the borrower's interest in the Mortgaged
Property. Both the borrower, the holder of a leasehold interest in the Mortgaged
Property, and the fee owner of the Mortgaged Property executed the Mortgage and
pledged their respective interests in the Mortgaged Property to the lender. Such
Mortgage Loan is not the subject of representation 18 and such Mortgage Loan is
not being listed here as an exception to this representation 45.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
None.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE STREET ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
2 Penn Mutual Towers & Washington Square Garage CRF Office 000-000 Xxxxxx Xxxxxx & 000 Xxxxx
0xx Xxxxxx
3 200 Xxxx CRF Other 000 Xxxx Xxxxxx
4 CNL-Cirrus MOB Portfolio III CRF Office Various
4.01 Xxxxx Xxxxxxx Xxxxxxx XXX Xxxxxx 0000 Xxxxx Xxxxxxx Expressway
4.02 The Medical Center at Xxxxx Ranch CRF Office 0000 Xxxxx Xxxxx Xxxxxxx 000
4.03 Denton Rehab Hospital CRF Office 0000 Xxxxx Xxxxxxx Xxxx
0.00 Xxxxx Xxxxx Professional Building CRF Office 0000 Xxxxx Xxxxxxx Xxxx
4.05 Harvard Physicians Building CRF Office 0000 Xxxxx Xxxxxxx Xxxxxx
5 Blairstone Office Building CRF Office 0000 Xxxxx Xxxxx Xxxx
6 BTR Capital Portfolio CRF Various Various
6.01 London Fog CRF Industrial 0000 Xxxxxxxxxx Xxxx
6.02 Arundel Village Plaza CRF Retail 0000-0000 Xxxxxxx Xxxxxxx
6.03 0000 Xxxxxxxxxx Xxxx CRF Industrial 0000 Xxxxxxxxxx Xxxx
6.04 0000 Xxxxxxx Xxxx XXX Industrial 0000 Xxxxxxx Xxxx
6.05 000 Xxxxx Xxxx XXX Xxxx 000 Xxxxx Xxxx
6.06 0000 Xxxxxx Xxxxxx CRF Industrial 0000 Xxxxxx Xxxxxx
6.07 0000 Xxxxxxx Xxxxxx XXX Industrial 0000 Xxxxxxx Xxxxxx
7 Jefferson Block Apartments CRF Multifamily 000 Xxxxx Xxxxxxxxx Xxxxxx
12 Radisson Harbor View CRF Hospitality 0000 Xxxxx Xxxxxx
14 Doubletree Club Hotel CRF Hospitality 1515 Hotel Circle South
16 Gladstone Portfolio - OH & PA CRF Industrial Various
16.01 Blue Coral Headquarters CRF Industrial 0000 Xxx Xxxx
16.02 Xxxxx-Xxxxxxxx CRF Industrial Route 219 North
16.03 Waste Management CRF Industrial 0000 Xxxxxxx Xxxxxx
19 Shelbourne Square Shopping Center CRF Retail 5400-5580 Perkiomen Avenue
20 Perimeter I CRF Office 00000 Xxxxx 00xx Xxxxxx
00 Xxxxx, XX Multifamily Portfolio CRF Multifamily Various
23.01 West Winds Apartments CRF Multifamily 0000 Xxxxxxx Xxxxxxxxx
23.02 Crest Manor CRF Multifamily 0000 Xxxxxxxxx 00xx Xxxxxx
23.03 Crestview Apartments CRF Multifamily 0000 Xxxxxxxxx 00xx Xxxxxx
23.04 Crestland Apartments CRF Multifamily 0000 Xxxxxxxx Xxxxxx
23.05 Westridge Apartments CRF Multifamily 0000 Xxxxxxx Xxxxxxxxx
23.06 Capri Apartments CRF Multifamily 0000 Xxxxx Xxxxxx
23.07 Crestwood Apartments CRF Multifamily 0000 Xxxxxxxxx 00xx Xxxxxx
24 Sam's Club Timonium CRF Retail 00 Xxxxx Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxxx - Xxx Xxxxxxxxx Airport CRF Hospitality 0000 Xxxxxx Xxxxx Xxxxxxx
27 College Center CRF Retail 28161 - 00000 Xxxxxxxxxx Xxxxxxx
31 Shoomer Retail Building CRF Retail 000 Xxxx 0xx Xxxxxx
32 Dayton Crossing CRF Multifamily 0000 Xxxxx Xxxxxx Xxx
33 Woodstream Village CRF Multifamily 00000 Xxxx Xxxxxxx Xxxxxx
36 Northridge Shopping Center CRF Retail 0000 Xxxx 00xx Xxxxxx
00 Xxxxxx Xxxxxx Xxxxxx XXX Other 350 Xxxxxxxxx Street
GRAOCH Apt. Crossed Notes CRF Multifamily Various
00 Xxxxxxxxx Xxxxxxx XXX Multifamily 1711 Bowie School Drive
43 Marina Club at Baytown CRF Multifamily 0000 Xxxxxxxx Xxxxxx
44 Xxxxxxxxx Arms Apartments CRF Multifamily 0000 Xxxxxx Xxxx
49 Sunset View Apartments CRF Multifamily 0000 XX Xxxxxx Xxxxxxxxx
50 Hampton Inn - Plantation Florida CRF Hospitality 0000 Xxxxxxxxx 0xx Xxxxxx
51 The Lab CRF Retail 0000 Xxxxxxx Xxxxxx
53 000 Xxxxxxx Xxxx XXX Industrial 000 Xxxxxxx Xxxx
00 Xxxxxxxx Xxxxxxxx Xxxxxx CRF Industrial 1 Xxxxxxxx Drive
57 USA Market CRF Retail 0000 Xxxxxxxxx 00xx Xxxxxx
60 Maple Ridge Plaza CRF Retail 0000 Xxxxx Xxxx
61 Spring Xxxx Medical Center CRF Office 0000 Xxxxxxx Xxxxxx
62 Atlanta Airport Distribution CRF Industrial 0000 Xxxxxx Xx
63 Gulfstream Aerospace Xxxxxxxx XXX Xxxxxx 000 Xxxxxxxxxx Xxxxxxx
67 Aramark Corporation Warehouse CRF Industrial 000 Xxxxxxxxx Xxxxx
70 16 West 22nd Street CRF Xxxxxx 00 Xxxx 00xx Xxxxxx
00 Xxx Xxxxxxxxx Apartments CRF Multifamily 0000 Xxxxxxxxxx Xxxxx
76 Hermosa Storage Center CRF Self Storage 0000 Xxxxxxx Xxxxxx
77 Savers Plaza CRF Retail 16816 North 35th Avenue, 0000-0000
Xxxx Xxxx Xxxx
79 Extra Space Storage - Hollywood CRF Self Storage 000 Xxxxx Xxxxx Xxxxxxx
00 0000 & 0000 Xxxxxx Xxxxxx XXX Xxxxxxx 0000 & 0000 Xxxxxx Xxxxxx
82.01 0000 Xxxxxx Xxxxxx XXX Self Storage 0000 Xxxxxx Xxxxxx
82.02 0000 Xxxxxx Xxxxxx XXX Xxxxxx 6022 Xxxxxx Xxxxxx
00 00000 Xxx Xxx Xxxxx XXX Xxxxxx 00000 Xxx Xxx Xxxxx Court
91 Residence Inn Milwaukee Xxxxxxxxx CRF Hospitality 000 Xxxxx Xxxxxxxxx Xxxxx
93 Santee & 12th CRF Retail 0000-0000 Xxxxx Xxxxxx Xxxxxx &
219-239 East 12th Street
00 Xxxxxxx Xxx Xxxxxx-Xxxx / Xxxxxx XXX Hospitality 00000 Xxxx Xxxxxx Xxxxxx
99 Comfort Inn El Paso CRF Hospitality 000 Xxxxx Xxxxxxxxx Xxxxx
100 Ashford Park Apartments CRF Multifamily 2700 South Dairy Ashford
000 Xxxxxxx Xxx Xxxxxxxx Xxxxxxx CRF Hospitality 000 Xxxx 0xx Xxxxxx
000 Xx Guardia Dollar Rent a Car XXX Xxxx 00-00 00xx Xxxxxx
107 180 North Executive Drive CRF Office 000 Xxxxx Xxxxxxxxx Xxxxx
108 Spring Medical CRF Office 0000 Xxxx Xxxxxx Xxxxxx
109 Xxxxxx Biscuit Building CRF Office 2901 Second Avenue South
110 Xxxxxx Mobile Home Park CRF Manufactured Housing 0000 Xxxxxxxx Xxxx
112 Boeing Clearlake CRF Industrial 00000 Xxxxx Xxxxxx Xxxxxxxxx
000 Xxxxxxxxx Xxxxxx Mall CRF Retail 0000 Xxx Xxxxxxxxx Xxxx
000 Xxxx Xxxx Xxxxxxx Center CRF Retail 0000 XX 0000 Xxxx
115 Holiday Inn Express Glenwood Springs CRF Hospitality 000 Xxxx 0xx Xxxxxx
000 Xxxx Xxxxxx Townhomes CRF Multifamily 000 Xxxxxx Xxxx
000 Xxxxx Xxxxx Xxxxxx - Xxxxxxxxxx XXX Hospitality 00 Xxxx Xxxxxxxxx Xxxx
000 Xxxxxxxxx Xxxxxxx Apartments CRF Multifamily 000 Xxxxxxxxx Xxxxx
122 Fedex Distribution Center CRF Industrial 15 New Industrial Way
127 Digital Insight Corporation Xxxxxxxx XXX Xxxxxx 0000 Xxxxxxxxx Xxxxxxx
000 Xxxxxx Xxxxx Xxxxxxx MHP CRF Manufactured Housing 000 Xxxx 00xx Xxxxxx
131 La Quinta Inn & Suites Willowbrook CRF Hospitality 00000 Xxxxx Xxxxxxx 000
132 The Centre at Yorktown Crossing CRF Retail 0000-0000 Xxxxx Xxxxxxx 0 Xxxxx
000 Xxxxxxx Xxxxx Hotel CRF Hospitality 000 Xxxxx Xxxxxx
000 Xxxxxx Xxxxx Xxxxx Xxxxxx XXX Xxxxxx 000 Xxxxxx Xxxxx Xxxxxxx
000 Xxxxxxx Xxxxx XXX Retail 0000 Xxxx Xxxxx Xxxxxxxxx
141 AAA Storage - Market Street CRF Self Storage 0000 Xxxxx Xxxxxx Xxxxxx
142 AAA Storage - Rodd Field CRF Self Storage 0000 Xxxx Xxxxx Xxxx
143 STS Consulting Building CRF Office 0000 Xxxxxx Xxxxx
000 Xxxxxxxx Xxxxxxxxxx XXX Multifamily 0000 Xxxx 0xx Xxxxxx
145 Towne East Village CRF Multifamily 0000 XX 00
149 Manhattan Pointe Plaza CRF Retail 000 Xxxxx Xxxxxxxx Xxxxxxxxx
151 Bullshead Plaza CRF Retail 000 Xxxx Xxxx Xxxxxx
152 AAA Storage - Xxxxxxx CRF Self Storage 00000 Xxxxx Xxxxxxx 0
153 Ridgeview Marketplace CRF Retail 6066-6082 Stetson Hills Boulevard
156 Babies 'R' Us - Simi Valley Ground Lease CRF Land North of Simi Town Center Way and
West of First Street
157 AAA Storage - Xxxxx CRF Self Storage 0000 Xxxxx Xxxxxx
158 Goldmine Village Shopping Center CRF Retail 000 Xxx-Xxxx Xxx
160 AAA Storage - Xxxxxxxxxx Avenue CRF Self Storage 0000 Xxxxx Xxxxxxxxxx Xxxxxx
161 Douglasville Medical Office CRF Office 6025 Professional Parkway
163 AAA Storage - Pearland CRF Self Storage 000 XX 000
164 Fifth Avenue Retail Center CRF Retail 0000 Xxxxxxx Xxxx
165 Plano Retail CRF Retail 000 00xx Xxxxxx
166 AAA Storage - Alvin CRF Self Storage 0000 XX 000
167 AAA Storage - Storage Xxxxxx CRF Self Storage 0000 Xxxxxxxxx Xxxxxx
168 El Centro Town Center CRF Retail 0000-0000 Xxxxxxxx Xxxxxx
169 Food City CRF Retail 0000 Xxxx 00xx Xxxxxx
000 Xxxxxxx Xxxxxx XXX Multifamily 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx
171 South Post Oak Shopping Center CRF Retail 16101 South Post Oak
173 Wachovia at MetroCorp Center CRF Office 0000 Xxxxxxxxx 00xx Xxxxx
000 Xxxxxxxx Xxxxxxxx XXX Retail 000 Xxxx Xxxxx Xxxxxx
000 Xxxxxxxxxxx Xxxxxxx CRF Retail 0000 Xxxxx Xxxxxx
178 Pembroke Shoppes CRF Retail 12393-12399 Pembroke Road
000 Xxxxxxx Xxxxx XXX Retail 0000 Xxxxx Xxxxxx Xxxx
000 Xxxxxxxx Xxxxxxxxxx Xxxxxx CRF Industrial 000 Xxxxxxxx Xxxx
181 San Xxxxxx RV Park CRF Manufactured Housing 000 Xxxx Xxxxxxxxx Xxxxxxxxx
182 AAA Storage - Buda CRF Self Storage 000 Xxxx 00 Xxxx Xxxxx
000 Xxxxx Xxxxxxx CRF Office 2980 and 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx
184 Telshor Business Center XXX Xxxxxx 000 Xxxxx Xxxxxxx Xxxxxxxxx
185 Xxxxx Park Plaza CRF Retail 0000 Xxxxxxxx Xxxx
000 XXX - Xxxxxx, XX CRF Retail 0000 Xxxxxxx Xxxxxxx at Auburn Road
000 Xxxx xx Xxxxxxx Xxxxxxx CRF Land 00000 Xxxxxxxxxx Xxxx
188 AAA Storage - Katy Super Storage CRF Self Storage 00000 Xxxxx Xxxx
000 Xxxxxxxx Acres Apts CRF Multifamily 0000 Xxxxxxxx Xxxxxx
000 Xxxxxxxxx - Xxxxxxx Self Storage CRF Self Storage 0000 Xxxxxxxx Xxxxxx
191 Big Ten Mini Storage CRF Self Storage 000 Xxxxx Xxxxx Xxxx
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT
LOAN # CITY COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($)
--------------------------------------------------------------------------------------------------------------------------------
2 Philadelphia Xxxxxxxxxxxx XX 00000 102,775,000 102,775,000 604,345.03
0 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 81,000,000 81,000,000 509,086.82
4 Various Various Various Various 47,190,000 47,190,000 277,189.34
4.01 Dallas Xxxxxx XX 00000 21,775,000 21,775,000
4.02 XxXxxxxx Xxxxxx XX 00000 9,360,000 9,360,000
4.03 Xxxxxx Xxxxxx XX 00000 7,800,000 7,800,000
4.04 Xxxxxx Xxxxxx XX 00000 5,915,000 5,915,000
4.05 Tulsa Xxxxx XX 00000 2,340,000 2,340,000
5 Xxxxxxxxxxx Xxxx XX 00000 35,701,000 35,701,000 226,124.39
6 Various Various MD Various 31,000,000 31,000,000 190,670.76
6.01 Eldersburg Xxxxxxx XX 00000 10,180,000 10,180,000
6.02 Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 5,185,000 5,185,000
6.03 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 4,080,000 4,080,000
6.04 Dundalk Xxxxxxxxx XX 00000 3,825,000 3,825,000
6.05 Xxxxxxxx Xxxxxxxxx XX 00000 3,165,000 3,165,000
6.06 Xxxxxxxxx Xxxxxxxxx XX 00000 2,355,000 2,355,000
6.07 Xxxxxxxxx Xxxxxxxxx XX 00000 2,210,000 2,210,000
7 Xxxxxxxxx Xxxxxxxxx XX 00000 30,200,000 30,200,000 174,707.21
00 Xxx Xxxxx Xxx Xxxxx XX 00000 24,934,113 25,000,000 150,692.22
00 Xxx Xxxxx Xxx Xxxxx XX 00000 23,000,000 23,000,000 142,203.22
16 Various Various Various Various 19,456,000 19,456,000 113,054.67
16.01 Xxxxx Xxxxxxx Xxxxxxxx XX 00000 10,896,000 10,896,000
16.02 Xxxxxx Xxxxxxxx Xxxxxxxxx XX 00000 5,760,000 5,760,000
16.03 Xxxxxxxx Xxxxxxxx XX 00000 2,800,000 2,800,000
00 Xxxxxx Xxxxx XX 00000 17,486,137 17,500,000 106,841.63
20 Xxxxxxxxxx Xxxxxxxx XX 00000 17,000,000 17,000,000 98,130.08
00 Xxxxx Xxxx XX 00000 16,336,448 16,350,000 98,026.51
23.01 Xxxxx Xxxx XX 00000 5,155,723 5,160,000
23.02 Xxxxx Xxxx XX 00000 4,611,175 4,615,000
23.03 Xxxxx Xxxx XX 00000 1,778,525 1,780,000
23.04 Xxxxx Xxxx XX 00000 1,658,624 1,660,000
23.05 Xxxxx Xxxx XX 00000 1,633,645 1,635,000
23.06 Xxxxx Xxxx XX 00000 959,204 960,000
23.07 Xxxxx Xxxx XX 00000 539,552 540,000
24 Xxxxxxxx Xxxxxxxxx XX 00000 16,130,000 16,130,000 93,414.26
00 Xxxxxxxx Xxx Xxxxx XX 00000 14,959,810 15,000,000 89,739.79
00 Xxxxxxx Xxxxx Xxxxxx XX 00000 14,250,000 14,250,000 82,887.76
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 13,572,175 13,600,000 77,134.00
00 Xxxxxx Xxxxxx XX 00000 13,400,000 13,400,000 79,995.49
00 Xxxxxx Xxxxxx XX 00000 13,300,000 13,300,000 79,398.51
00 Xxxxxx Xxxxxxxxx XX 00000 12,500,000 12,500,000 70,895.22
00 Xxxxxxxxx Xxxxxxxx XX 00000 12,100,000 12,100,000 73,516.92
Various Various TX Various 11,500,000 11,500,000 70,957.13
00 Xxxxxxx Xxxxxx XX 00000 5,250,000 5,250,000 32,393.47
00 Xxxxxxx Xxxxxx XX 00000 4,150,000 4,150,000 25,606.27
00 Xxxxxxxxx Xxxxxxxxx XX 00000 2,100,000 2,100,000 12,957.39
00 Xxxxxx Xxxx XX 00000 10,585,080 10,650,000 61,728.31
00 Xxxxxxxxxx Xxxxxxx XX 00000 10,480,227 10,500,000 62,077.92
00 Xxxxx Xxxx Xxxxxx XX 00000 10,400,000 10,400,000 60,923.01
53 Xxxx Xxxx XX 00000 10,000,000 10,000,000 58,994.09
56 Cheektowaga Xxxx XX 00000 9,947,780 10,000,000 60,785.22
00 Xxxxx Xxxxx-Xxxx XX 00000 9,920,584 10,000,000 66,648.53
00 Xxxxxxx Xxxx XX 00000 9,300,000 9,300,000 55,042.73
00 Xxxxxx Xxx Xxxxx XX 0000 8,981,587 9,000,000 51,044.56
00 Xxxx Xxxxx Xxxxxx XX 00000 8,800,000 8,800,000 52,930.30
00 Xxxxxxxx Xxxxxxx XX 00000 8,800,000 8,800,000 57,670.72
00 Xxxxxxx Xxxxxxxx XX 0000 8,400,000 8,400,000 50,092.54
00 Xxx Xxxx Xxx Xxxx XX 00000 8,000,000 8,000,000 38,798.15
00 Xxxxxxxx Xxxxxx XX 00000 7,660,880 7,660,880 45,734.02
00 Xxxxxx Xxxxxxxxx Xxx Xxxxxxxxxx XX 00000 7,600,000 7,600,000 47,289.91
77 Xxxxxxx Xxxxxxxx XX 00000 7,500,000 7,500,000 44,677.38
00 Xxxxxxxxx Xxxxxxx XX 00000 7,400,000 7,400,000 44,843.61
00 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 7,330,168 7,350,000 43,830.97
82.01 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 4,148,775 4,160,000
82.02 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 3,181,393 3,190,000
00 Xxx Xxxxx Xxx Xxxxx XX 00000 7,000,000 7,000,000 43,648.00
00 Xxxxxxxxxx Xxxxxxxx XX 00000 6,885,000 6,885,000 43,522.25
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 6,600,000 6,600,000 39,231.51
00 Xxxxxx Xxxxxxxxx XX 00000 6,385,613 6,400,000 38,400.78
00 Xx Xxxx Xx Xxxx XX 00000 6,000,000 6,000,000 41,682.30
000 Xxxxxxx Xxxxxx XX 00000 5,910,266 5,915,000 35,966.94
000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 5,849,103 5,900,000 37,510.47
000 Xxxx Xxxxxxxx Xxxxxx XX 00000 5,500,000 5,500,000 34,043.50
000 Xxxxxxxxxx Xxxxxxxx XX 00000 5,477,951 5,500,000 35,470.21
000 Xxxx Xxxxx Xxx Xxxxxxx XX 00000 5,400,000 5,400,000 31,787.90
000 Xxxxxxxxxx Xxxxxxxxx XX 00000 5,250,000 5,250,000 31,139.67
000 Xxxxxx Xxxx XX 00000 5,200,000 5,200,000 30,776.58
000 Xxxxxxx Xxxxxx XX 00000 5,186,113 5,200,000 33,886.15
000 Xxxxxxxx Xxxxxx XX 00000 4,986,791 5,000,000 30,106.23
000 Xxxxxx Xxxxxx XX 00000 4,966,613 5,000,000 27,579.22
000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 4,956,867 5,000,000 31,788.53
000 Xxxxxxxxx Xxxxxx XX 00000 4,921,285 4,925,000 30,645.11
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 4,843,725 4,850,000 31,041.42
000 Xxxxxxx Xxxxxx XX 00000 4,795,905 4,800,000 28,439.85
000 Xxxxxx Xxxxxxx XX 0000 4,786,276 4,800,000 27,859.22
000 Xxxxxxxx Xxxxxxxx XX 00000 4,500,000 4,500,000 27,908.02
000 Xxxxxxxx Xxxxxxx XX 00000 4,480,000 4,480,000 27,700.78
000 Xxxxxxx Xxxxxx XX 00000 4,315,613 4,320,000 30,836.67
000 Xxxxxxx Xxxxxx XX 00000 4,300,000 4,300,000 25,835.99
000 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 4,094,726 4,100,000 26,316.20
000 Xxxxx Xxxxxxx XX 00000 3,793,156 3,800,000 22,954.22
000 Xxxxx Xxxx Xxx Xxxxxxx XX 00000 3,596,993 3,600,000 21,514.43
000 Xxxxxxxxx Xxxxxxxxx XX 00000 3,520,000 3,520,000 22,504.05
000 Xxxxxx Xxxxxxx Xxxxxx XX 00000 3,513,000 3,513,000 23,588.49
000 Xxxxx Xxx Xxxxx XX 00000 3,500,000 3,500,000 21,119.47
000 Xxxxxxxxx Xxxxxx XX 00000 3,433,493 3,440,000 20,293.97
000 Xxxxxxxx Xxxxx XX 00000 3,397,540 3,400,000 21,490.31
000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 3,000,000 3,000,000 17,890.19
000 Xxxxxxxxx Xxxxxx XX 00000 2,941,527 2,950,000 17,084.44
000 Xxxxxxx Xxxxxx XX 00000 2,934,000 2,934,000 18,256.40
000 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000 2,860,000 2,860,000 16,908.84
000 Xxxx Xxxxxx Xxxxxxx XX 00000 2,793,420 2,800,000 15,468.50
000 Xxxxxx Xxxxxxx Xxxxxx XX 00000 2,647,000 2,647,000 17,298.19
000 Xxxxxxxxx Xxxxxxx XX 00000 2,640,000 2,640,000 15,490.28
000 Xxxxxx Xxxxxxxxx XX 00000 2,541,000 2,541,000 16,211.54
000 Xxxxxxxxxxxx Xxxxxxx XX 00000 2,500,000 2,500,000 16,049.12
000 Xxxxxxxx Xxxxxxxx XX 00000 2,304,000 2,304,000 14,111.29
000 Xxxxxx Xxxxxx XX 00000 2,300,000 2,300,000 14,056.95
000 Xxxxx Xxxxxx XX 00000 2,214,614 2,216,500 13,146.87
000 Xxxxx Xxxxxxxx XX 00000 2,148,000 2,148,000 13,155.83
000 Xxxxxxxxx Xxxxxxxx XX 00000 2,111,000 2,111,000 13,468.15
000 Xx Xxxxxx Xxxxxxxx XX 00000 2,096,209 2,100,000 12,671.68
169 Yuma Xxxx XX 00000 2,050,000 2,050,000 13,473.89
170 Xxxxxxx Xxxxxx XX 00000 2,042,000 2,042,000 13,095.41
000 Xxxxxxx Xxxx Xxxx XX 00000 1,992,756 2,000,000 12,694.02
000 Xxxxxxxxxxx Xxxxxxx XX 00000 1,925,000 1,925,000 12,217.99
174 Xxxxx Xxx XX 00000 1,900,000 1,900,000 11,698.63
000 Xxxxxxxxxxx Xxxxxxxx XX 00000 1,850,000 1,850,000 11,608.22
000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 1,806,689 1,810,000 10,851.86
000 XxXxxxxx Xxxxxx XX 00000 1,778,616 1,780,000 10,948.19
000 Xxxxxxxxx Xxxxx XX 00000 1,765,000 1,765,000 11,225.74
000 Xxx Xxxxxx Xxxxx XX 00000 1,650,000 1,650,000 9,797.31
000 Xxxx Xxxx XX 00000 1,599,000 1,599,000 9,949.55
000 Xxx Xxxxx Xxxxx XX 00000 1,591,772 1,600,000 9,306.70
000 Xxx Xxxxxx Xxxx Xxx XX 00000 1,578,752 1,580,000 9,656.51
000 Xxxxxxxx Xxxxxxxx XX 00000 1,545,669 1,550,000 9,094.67
000 Xxxxxx Xxxxxx XX 00000 1,500,000 1,500,000 8,535.67
000 Xxxxxx Xxxxxx XX 00000 1,495,839 1,500,000 9,573.04
000 Xxxx Xxxxxx XX 00000 1,495,000 1,495,000 9,557.83
000 Xxxxxx Xxxxx XX 00000 1,354,402 1,360,000 8,040.57
000 Xxxxxxx Xxx Xxxxxxxxxx XX 00000 1,049,188 1,050,000 6,471.86
000 Xxxx Xxxxxxx Xxxxxxxxx XX 00000 998,199 1,000,000 6,040.58
NET
ANNUAL P&I DEBT INTEREST PRIMARY MASTER TRUSTEE AND SUB SERVICIN ADMIN. MORTGAGE
LOAN # SERVICE ($) RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE %
------------------------------------------------------------------------------------------------------------------------------------
2 7,252,140.36 5.8200 0.010 0.010 0.0012 0.0212 5.79880
3 6,109,041.82 5.7400 0.010 0.010 0.0012 0.0212 5.71880
4 3,326,272.10 5.8100 0.010 0.010 0.0012 0.0212 5.78880
4.01
4.02
4.03
4.04
4.05
5 2,713,492.63 6.5200 0.010 0.010 0.0012 0.0212 6.49880
6 2,288,049.11 6.2400 0.010 0.010 0.0012 0.0212 6.21880
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 2,096,486.56 5.6700 0.010 0.010 0.0012 0.0212 5.64880
12 1,808,306.68 6.0500 0.010 0.010 0.0012 0.0212 6.02880
14 1,706,438.61 5.5700 0.010 0.010 0.0012 0.0212 5.54880
16 1,356,656.00 5.7107 0.010 0.010 0.0012 0.0212 5.68950
16.01
16.02
16.03
19 1,282,099.55 6.1700 0.010 0.010 0.0012 0.0212 6.14880
20 1,177,561.01 5.6500 0.010 0.010 0.0012 0.0212 5.62880
23 1,176,318.13 6.0000 0.010 0.010 0.0012 0.0212 5.97880
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 1,120,971.06 5.6800 0.010 0.010 0.0012 0.0212 5.65880
26 1,076,877.53 5.9800 0.010 0.010 0.0012 0.0212 5.95880
27 994,653.08 5.7200 0.010 0.010 0.0012 0.0212 5.69880
31 925,607.97 5.4900 0.010 0.010 0.0012 0.0212 5.46880
32 959,945.88 5.9600 0.010 0.0012 0.0500 0.0612 5.89880
33 952,782.11 5.9600 0.010 0.0012 0.0500 0.0612 5.89880
36 850,742.62 5.4900 0.010 0.010 0.0012 0.0212 5.46880
37 882,203.08 5.8800 0.010 0.010 0.0012 0.0212 5.85880
851,485.60 6.2700 0.010 0.010 0.0012 0.0212 6.24880
42 388,721.64 6.2700 0.010 0.010 0.0012 0.0212 6.24880
43 307,275.24 6.2700 0.010 0.010 0.0012 0.0212 6.24880
44 155,488.68 6.2700 0.010 0.010 0.0012 0.0212 6.24880
49 740,739.71 5.6875 0.010 0.010 0.0012 0.0212 5.66630
50 744,934.99 5.8700 0.010 0.010 0.0012 0.0212 5.84880
51 731,076.12 5.7850 0.010 0.010 0.0012 0.0212 5.76380
53 707,929.12 5.8500 0.010 0.010 0.0012 0.0212 5.82880
56 729,422.65 5.7400 0.010 0.010 0.0012 0.0212 5.71880
57 799,782.33 6.3600 0.010 0.010 0.0012 0.0212 6.33880
60 660,512.81 5.8800 0.010 0.010 0.0012 0.0212 5.85880
61 612,534.69 5.4900 0.010 0.010 0.0012 0.0212 5.46880
62 635,163.56 6.0300 0.010 0.010 0.0012 0.0212 6.00880
63 692,048.64 6.1800 0.010 0.010 0.0012 0.0212 6.15880
67 601,110.43 5.9500 0.010 0.010 0.0012 0.0212 5.92880
70 465,577.78 5.7400 0.010 0.010 0.0012 0.0212 5.71880
75 548,808.23 5.9600 0.010 0.010 0.0012 0.0212 5.93880
76 567,478.96 6.3500 0.010 0.010 0.0012 0.0212 6.32880
77 536,128.62 5.9400 0.010 0.010 0.0012 0.0212 5.91880
79 538,123.37 6.1000 0.010 0.010 0.0012 0.0212 6.07880
82 525,971.63 5.9500 0.010 0.010 0.0012 0.0212 5.92880
82.01
82.02
89 523,776.05 6.3700 0.010 0.010 0.0012 0.0212 6.34880
91 522,266.97 5.8000 0.010 0.010 0.0012 0.0212 5.77880
93 470,778.17 5.9200 0.010 0.010 0.0012 0.0212 5.89880
97 460,809.31 5.7590 0.010 0.010 0.0012 0.0212 5.73780
99 500,187.60 6.8100 0.010 0.010 0.0012 0.0212 6.78880
100 431,603.32 6.1320 0.010 0.010 0.0012 0.0212 6.11080
101 450,125.65 5.8600 0.010 0.010 0.0012 0.0212 5.83880
106 408,522.04 6.3000 0.010 0.010 0.0012 0.0212 6.27880
107 425,642.46 6.0100 0.010 0.010 0.0012 0.0212 5.98880
108 381,454.82 5.8300 0.010 0.010 0.0012 0.0212 5.80880
109 373,676.00 5.9000 0.010 0.010 0.0012 0.0212 5.87880
110 369,318.99 5.8800 0.010 0.010 0.0012 0.0212 5.85880
112 406,633.74 6.1200 0.010 0.010 0.0012 0.0212 6.09880
113 361,274.77 6.0400 0.010 0.010 0.0012 0.0212 6.01880
114 330,950.69 5.2400 0.010 0.010 0.0012 0.0212 5.21880
115 381,462.41 5.8600 0.010 0.010 0.0012 0.0212 5.83880
116 367,741.30 6.3500 0.010 0.010 0.0012 0.0212 6.32880
120 372,497.01 5.9300 0.010 0.010 0.0012 0.0212 5.90880
121 341,278.15 5.8900 0.010 0.010 0.0012 0.0212 5.86880
122 334,310.65 5.7000 0.010 0.010 0.0012 0.0212 5.67880
127 334,896.28 6.0800 0.010 0.010 0.0012 0.0212 6.05880
128 332,409.41 6.2900 0.010 0.010 0.0012 0.0212 6.26880
131 370,040.07 7.1100 0.010 0.010 0.0012 0.0212 7.08880
132 310,031.88 6.0200 0.010 0.010 0.0012 0.0212 5.99880
134 315,794.38 5.9600 0.010 0.010 0.0012 0.0212 5.93880
138 275,450.61 6.0700 0.010 0.010 0.0012 0.0212 6.04880
139 258,173.19 5.9700 0.010 0.010 0.0012 0.0212 5.94880
141 270,048.54 6.6100 0.010 0.010 0.0012 0.0212 6.58880
142 283,061.85 6.4400 0.010 0.010 0.0012 0.0212 6.41880
143 253,433.66 6.0600 0.010 0.010 0.0012 0.0212 6.03880
144 243,527.62 5.8500 0.010 0.010 0.0012 0.0212 5.82880
145 257,883.75 6.5000 0.010 0.010 0.0012 0.0212 6.47880
149 214,682.30 5.9500 0.010 0.010 0.0012 0.0212 5.92880
151 205,013.31 5.6800 0.010 0.010 0.0012 0.0212 5.65880
152 219,076.75 6.3500 0.010 0.010 0.0012 0.0212 6.32880
153 202,906.10 5.8700 0.010 0.010 0.0012 0.0212 5.84880
156 185,621.94 5.5700 0.010 0.010 0.0012 0.0212 5.54880
157 207,578.26 6.1500 0.010 0.010 0.0012 0.0212 6.12880
158 185,883.36 5.8000 0.010 0.010 0.0012 0.0212 5.77880
160 194,538.49 6.5900 0.010 0.010 0.0012 0.0212 6.56880
161 192,589.46 6.6500 0.010 0.010 0.0012 0.0212 6.62880
163 169,335.42 6.2000 0.010 0.010 0.0012 0.0212 6.17880
164 168,683.41 6.1800 0.010 0.010 0.0012 0.0212 6.15880
165 157,762.45 5.9000 0.010 0.010 0.0012 0.0212 5.87880
166 157,870.00 6.2000 0.010 0.010 0.0012 0.0212 6.17880
167 161,617.77 6.5900 0.010 0.010 0.0012 0.0212 6.56880
168 152,060.19 6.0600 0.010 0.010 0.0012 0.0212 6.03880
169 161,686.68 6.8800 0.010 0.010 0.0012 0.0212 6.85880
170 157,144.91 6.6400 0.010 0.010 0.0012 0.0212 6.61880
171 152,328.22 6.5400 0.010 0.010 0.0012 0.0212 6.51880
173 146,615.91 6.5400 0.010 0.010 0.0012 0.0212 6.51880
174 140,383.52 6.2500 0.010 0.010 0.0012 0.0212 6.22880
175 139,298.68 6.4300 0.010 0.010 0.0012 0.0212 6.40880
178 130,222.37 6.0000 0.010 0.010 0.0012 0.0212 5.97880
179 131,378.30 6.2400 0.010 0.010 0.0012 0.0212 6.21880
180 134,708.84 6.5600 0.010 0.010 0.0012 0.0212 6.53880
181 117,567.75 5.9100 0.010 0.010 0.0012 0.0212 5.88880
182 119,394.59 6.3500 0.010 0.010 0.0012 0.0212 6.32880
183 111,680.35 5.7200 0.010 0.010 0.0012 0.0212 5.69880
184 115,878.17 6.1800 0.010 0.010 0.0012 0.0212 6.15880
185 109,136.07 5.8000 0.010 0.010 0.0012 0.0212 5.77880
186 102,428.00 5.5200 0.010 0.010 0.0012 0.0212 5.49880
187 114,876.44 5.9000 0.010 0.010 0.0012 0.0212 5.87880
188 114,693.91 6.6100 0.010 0.010 0.0012 0.0212 6.58880
189 96,486.82 5.8700 0.010 0.010 0.0012 0.0212 5.84880
190 77,662.33 6.2600 0.010 0.010 0.0012 0.0212 6.23880
191 72,487.00 6.0700 0.010 0.010 0.0012 0.0212 6.04880
MONTHLY
PAYMENT MATURITY/ AMORT
LOAN # ACCRUAL TYPE TERM DATE REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN
--------------------------------------------------------------------------------------------------------------------------------
2 Actual/360 120 8 118 4/8/2016 360 360 Fee
3 Actual/360 120 8 112 10/8/2015 300 300 Fee
4 Actual/360 120 8 118 4/8/2016 360 360 Fee
4.01 Fee
4.02 Fee
4.03 Fee
4.04 Fee
4.05 Fee
5 Actual/360 84 8 83 5/8/2013 360 360 Fee
6 Actual/360 60 8 57 3/8/2011 360 360 Fee
6.01 Fee
6.02 Fee
6.03 Fee
6.04 Fee
6.05 Fee
6.06 Fee
6.07 Fee
7 Actual/360 120 8 119 5/8/2016 360 360 Fee
12 Actual/360 60 8 57 3/8/2011 360 357 Fee/Leasehold
14 Actual/360 120 8 112 10/8/2015 300 300 Leasehold
16 Actual/360 120 8 115 1/8/2016 360 360 Fee
16.01 Fee
16.02 Fee
16.03 Fee
19 Actual/360 120 8 119 5/8/2016 360 359 Fee
20 Actual/360 120 8 119 5/8/2016 360 360 Fee
23 Actual/360 120 8 119 5/8/2016 360 359 Fee
23.01 Fee
23.02 Fee
23.03 Fee
23.04 Fee
23.05 Fee
23.06 Fee
23.07 Fee
24 Actual/360 120 8 118 4/8/2016 360 360 Fee
26 Actual/360 120 8 117 3/8/2016 360 357 Fee
27 Actual/360 120 8 119 5/8/2016 360 360 Fee
31 Actual/360 120 8 118 4/8/2016 360 358 Fee
32 Actual/360 120 8 118 4/8/2016 360 360 Fee
33 Actual/360 120 8 118 4/8/2016 360 360 Fee
36 Actual/360 120 8 117 3/8/2016 360 360 Fee
37 Actual/360 120 8 118 4/8/2016 336 336 Fee
Actual/360 120 8 119 5/8/2016 360 360 Fee
42 Actual/360 120 8 119 5/8/2016 360 360 Fee
43 Actual/360 120 8 119 5/8/2016 360 360 Fee
44 Actual/360 120 8 119 5/8/2016 360 360 Fee
49 Actual/360 120 8 114 12/8/2015 360 354 Fee
50 Actual/360 120 8 118 4/8/2016 360 358 Fee
51 Actual/360 120 8 118 4/8/2016 360 360 Fee
53 Actual/360 120 8 118 4/8/2016 360 360 Fee
56 Actual/360 120 8 116 2/8/2016 324 320 Fee
57 Actual/360 60 8 54 12/8/2010 300 294 Fee Yes
60 Actual/360 120 8 119 5/8/2016 360 360 Fee
61 Actual/360 120 8 118 4/8/2016 360 358 Fee
62 Actual/360 120 8 119 5/8/2016 360 360 Fee
63 Actual/360 120 8 120 6/8/2016 300 300 Fee
67 Actual/360 120 8 119 5/8/2016 360 360 Fee
70 Actual/360 120 8 118 4/8/2016 0 0 Fee
75 Actual/360 120 8 118 4/8/2016 360 360 Fee
76 Actual/360 120 8 120 6/8/2016 360 360 Fee
77 Actual/360 120 8 118 4/8/2016 360 360 Fee
79 Actual/360 120 8 118 4/8/2016 360 360 Fee
82 Actual/360 120 8 117 3/8/2016 360 357 Fee
82.01 Fee
82.02 Fee
89 Actual/360 66 8 66 12/8/2011 360 360 Fee
91 Actual/360 120 8 116 2/8/2016 300 300 Fee
93 Actual/360 120 8 118 4/8/2016 360 360 Fee
97 Actual/360 120 8 118 4/8/2016 336 334 Fee
99 Actual/360 60 8 60 6/8/2011 300 300 Fee
100 Actual/360 120 8 119 5/8/2016 360 359 Fee
101 Actual/360 120 8 114 12/8/2015 300 294 Fee
106 Actual/360 55 8 55 1/8/2011 360 360 Fee
107 Actual/360 120 8 117 3/8/2016 300 297 Fee
108 Actual/360 120 8 119 5/8/2016 360 360 Fee
109 Actual/360 120 8 120 6/8/2016 360 360 Fee
110 Actual/360 120 8 117 3/8/2016 360 360 Fee
112 Actual/360 120 8 118 4/8/2016 300 298 Fee
113 Actual/360 60 8 57 3/8/2011 360 357 Fee
114 Actual/360 120 8 114 12/8/2015 360 354 Fee
115 Actual/360 120 8 114 12/8/2015 300 294 Fee
116 Actual/360 120 8 119 5/8/2016 360 359 Fee
120 Actual/360 120 8 119 5/8/2016 300 299 Leasehold
121 Actual/360 120 8 119 5/8/2016 360 359 Fee
122 Actual/360 120 8 117 3/8/2016 360 357 Fee Yes
127 Actual/360 120 8 117 3/8/2016 336 336 Fee
128 Actual/360 120 8 119 5/8/2016 360 360 Fee
131 Actual/360 120 8 119 5/8/2016 300 299 Fee
132 Actual/360 120 8 118 4/8/2016 360 360 Fee
134 Actual/360 120 8 119 5/8/2016 300 299 Fee
138 Actual/360 120 8 118 4/8/2016 360 358 Fee
139 Actual/360 120 8 119 5/8/2016 360 359 Fee
141 Actual/360 120 8 119 5/8/2016 360 360 Fee
142 Actual/360 120 8 119 5/8/2016 300 300 Fee
143 Actual/360 120 8 119 5/8/2016 360 360 Fee
144 Actual/360 120 8 118 4/8/2016 360 358 Fee
145 Actual/360 120 8 119 5/8/2016 360 359 Fee
149 Actual/360 120 8 119 5/8/2016 360 360 Fee
151 Actual/360 120 8 117 3/8/2016 360 357 Fee
152 Actual/360 120 8 119 5/8/2016 360 360 Fee
153 Actual/360 101 8 99 9/8/2014 360 360 Fee
156 Actual/360 120 8 117 3/8/2016 396 393 Fee
157 Actual/360 120 8 118 4/8/2016 300 300 Fee
158 Actual/360 120 8 117 3/8/2016 360 360 Fee
160 Actual/360 120 8 120 6/8/2016 360 360 Fee
161 Actual/360 120 8 120 6/8/2016 360 360 Fee
163 Actual/360 120 8 118 4/8/2016 360 360 Fee
164 Actual/360 120 8 119 5/8/2016 360 360 Fee
165 Actual/360 120 8 119 5/8/2016 360 359 Fee
166 Actual/360 120 8 118 4/8/2016 360 360 Fee
167 Actual/360 120 8 120 6/8/2016 360 360 Fee
168 Actual/360 120 8 118 4/8/2016 360 358 Fee
169 Actual/360 120 8 120 6/8/2016 360 360 Fee
170 Actual/360 120 8 120 6/8/2016 360 360 Fee
171 Actual/360 120 8 116 2/8/2016 360 356 Fee
173 Actual/360 120 8 120 6/8/2016 360 360 Fee
174 Actual/360 120 8 120 6/8/2016 360 360 Fee
175 Actual/360 120 8 120 6/8/2016 360 360 Fee
178 Actual/360 120 8 118 4/8/2016 360 358 Fee
179 Actual/360 120 8 119 5/8/2016 360 359 Fee
180 Actual/360 120 8 120 6/8/2016 360 360 Fee
181 Actual/360 120 8 117 3/8/2016 360 360 Fee
182 Actual/360 120 8 119 5/8/2016 360 360 Fee
183 Actual/360 120 8 115 1/8/2016 360 355 Fee
184 Actual/360 120 8 119 5/8/2016 360 359 Fee
185 Actual/360 120 8 117 3/8/2016 360 357 Fee
186 Actual/360 120 8 118 4/8/2016 360 360 Fee
187 Actual/360 120 8 118 4/8/2016 300 298 Fee
188 Actual/360 120 8 119 5/8/2016 360 360 Fee
189 Actual/360 120 8 116 2/8/2016 360 356 Fee
190 Actual/360 120 8 119 5/8/2016 360 359 Fee
191 Actual/360 120 8 118 4/8/2016 360 358 Fee
ARD ENVIRONMENTAL CROSS CROSS
LOAN # STEP UP INSURANCE DEFAULTED COLLATERALIZED
-------------------------------------------------------------------------------------------------------------------------
2 No
3 No
4 No
4.01 No
4.02 No
4.03 No
4.04 No
4.05 No
5 No
6 No
6.01 No
6.02 No
6.03 No
6.04 No
6.05 No
6.06 No
6.07 Xx
0 Xx
00 Xx
00 Xx
00 Xx
16.01 No
16.02 No
16.03 No
19 No
20 No
23 No
23.01 No
23.02 No
23.03 No
23.04 No
23.05 No
23.06 No
23.07 Xx
00 Xx
00 Xx
00 Xx
00 Xx
32 No
33 No
36 No
37 No
No Yes (1) Yes (1)
42 No Yes (1) Yes (1)
43 No Yes (1) Yes (1)
44 No Yes (1) Yes (1)
49 No
50 No
51 No
53 No
56 No
57 Greater of: (i) Initial Interest Rate plus 5%
or (ii) 5yr Treasury Rate plus 6.75%. Xx
00 Xx
00 Xx
00 Xx
00 Xx
67 No
70 No
75 Xx
00 Xx
00 Xx
00 Xx
00 Xx
82.01 No
82.02 Xx
00 Xx
00 Xx
00 Xx
00 Xx
99 No
100 No
101 No
106 No
107 No
108 No
109 No
110 No
112 No
113 No
114 No
115 No
116 No
120 No
121 No
122 Greater of: (i) Initial Interest Rate plus 5%
or (ii) 10yr Treasury Rate plus 6.20%. Xx
000 Xx
000 Xx
000 Xx
000 Xx
134 No
138 No
139 No
141 No
142 No
143 No
144 No
145 No
149 No
151 No
152 No
153 No
156 No
157 No
158 No
160 No
161 No
163 No
164 No
165 No
166 No
167 No
168 No
169 No
170 No
171 No
173 No
174 No
175 No
178 No
179 No
180 No
181 No
182 No
183 No
184 No
185 No
186 No
187 Xx
000 Xx
000 Xx
000 Xx
000 Xx
PARTIAL UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
DEFEASANCE LETTER OF LOCKBOX HOLDBACK ENGINEERING CAPEX TI/LC RE TAX INS.
LOAN # ALLOWED CREDIT TYPE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------------------------------------------------------------------------------------------------------------------------------------
2 Hard 794,250 8,063,680 379,927 259,235
3 Hard 55,469 867,327 532,630
4 Yes 431,887
4.01
4.02
4.03
4.04
4.05
5 Hard 35,000 371,420 27,263
6 Yes Hard 200,000 275,000 169,800 13,310
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 Yes Soft 166,268 11,681
12 Hard 110,425
14 63,931
16 Yes Hard 40,250 193,743
16.01
16.02
16.03
19 4,500 205,495
20 Yes Hard
23 Yes 116,274 11,357
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 Hard 50,197
26 Hard
27 Yes Hard 150,000 17,658 6,327
31 5,573
32 132,213 7,785
33 38,688 7,872
36 Hard 200,000
37 3,125 100,000 47,191 34,860
Yes 97,131 95,249
42 Yes 42,627 40,948
43 Yes 33,674 32,937
44 Yes 20,830 21,364
49 Soft 12,200 27,844 9,721
50 Hard 95,205 21,581
51 8,463
53 Yes Hard
56 Hard 51,281 12,917 127,667 45,121
57 Hard 111,500 10,000 35,878 36,598
60 Hard 75,000 78,392 2,425
61 81,504 10,832
62 Hard 26,563 62,325 2,417
63 Hard
67 Hard 25,750
70 Hard 249,048
75 Hard 231,500 82,833 8,552
76 9,723 6,640
77 Hard 13,000 1,756
79 2,500 63,080 35,605
82 Yes Hard 87,220 2,000
82.01
82.02
89 Hard 229,300
91 Hard 1,910
93 9,894
97 Hard
99 Hard 400,000 67,795 14,060
100 Soft 46,076 3,516
101 Hard 52,667
106 127,600
107 Hard 5,250 30,117 2,550
108 7,231 2,599
109 9,552 7,807
110
112
113 34,462 4,852
114 Yes Hard 145,572 16,621
115 Hard 50,000
116 Soft 18,250 59,895 14,125
120 16,664 14,927
121 114,741 6,000 21,672 4,800
122 Hard 10,943
127 Hard 15,280 250,000 30,000 1,745
128 3,643 427
131 Hard 1,500 30,240 31,038 4,348
132 559 4,167 38,770 1,930
134 Hard 20,000 68,973 11,093
138 Hard 31,723 725
139 374 60,000 3,311 1,533
141 Yes Soft 8,329 1,841 5,703
142 Yes Soft 10,463 21,970 2,910
143 Hard
144 265,000 16,904 3,784
145 5,000 16,023 6,634
149 286 5,309 8,061
151 Hard 325,358 76,145 9,592
152 Yes Soft 30,670 20,658 4,530
153 116,000 4,785
156
157 Yes Soft 13,370 32,884 15,430 6,818
158 5,516 606
160 Yes Soft 8,119 2,950 5,662
161 766 5,081 4,829 391
163 Yes Soft 27,522 8,725 4,887
164 280 2,241 9,254 979
165 250 6,105 1,607
166 Yes Soft 18,324 10,552 7,834
167 Yes Soft 5,691 23,655 5,819
168 105 7,083 648
169 Hard 68,894 3,155 5,089
170 20,642 3,412
171 4,920 1,044
173 Yes 333 3,334 7,639 1,078
174 2,625 546 50,000 5,819 733
175 191 628 6,208 592
178 12,500 333 57,221 24,800 3,944
179 83 917 12,203 453
180 837 3,000 2,987 1,560
181 561 6,510 821
182 Yes Soft 15,113 11,907 1,792
183 42,000 2,667
184 536 3,430 12,902 479
185 979 3,376 13,103 933
186 Hard 2,662 1,275
187 Hard 73 427
188 Yes Hard 16,860 17,182 4,234
189 9,858 3,414 3,681
190 5,613 829
191 692 7,459 309
UPFRONT MONTHLY MONTHLY MONTHLY
OTHER CAPEX CAPEX TI/LC
LOAN # RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($)
-----------------------------------------------------------------------------------------------------------------------------------
2 380,000 14,361 861,688 79,706
3 8,784
4 1,437,842
4.01
4.02
4.03
4.04
4.05
5 4,500,000 4,225 21,761
6 10,913 10,456
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 1,500,000 $2,712.50 - 6/8/2006; $3,616.67 - 6/8/2007; $4,520.84 - 6/8/2008 130,200
12 5,500,000
14 19,466
16 12,707 11,270
16.01
16.02
16.03
19 62,200 3,275 3,333
20 1,000,000 1,161
23 5,958 142,998
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 50,197
26 16,295
27 1,450,000 917 3,439
31 1,867
32 7,087 170,094
33 8,177 196,237
36 1,458 3,646
37 3,717 973
8,917
42 3,833
43 3,084
44 2,000
49 5,000
50 12,408
51 631 3,181
53 1,250
56 850,000 6,025 12,917
57 3,589
60 1,663 4,776
61
62 45,000 3,438 12,500
63 833 8,334
67 2,463 88,650
70
75 5,754 4,167
76 1,280
77 1,166 2,552
79 400,000 897
82 819 2,609
82.01
82.02
89 2,084
91 1,571,000 8,614
93 453 1,332
97 7,707
99 8,001
100 4,536 3,000
101 5,620
106
107 715,005 1,045 6,688
108
109 300,000 847 2,123
110 717 25,800
112 306
113 1,095 3,420
114 750,000 644 15,457 2,000
115 5,000
116 2,546
120 5,306
121 3,000
122 77,656
127
128
131 6,046
132 300,000 279 2,083
134 10,432
138 431 2,530
139 187 6,726 1,601
141 246,000
142 148,000
143
144 2,500 60,000
145 2,500
149 143 1,398
151 1,336
152 244,000
153 158 5,668 1,122
156
157 220,000
158 342 12,308 1,709
160 204,000
161 20,900 383 2,540
163 146,000
164 21,332 140 1,120
165 80,205 125
166 179,000
167 176,000
168 28,000 53
169 1,577 2,544
170 1,005
171 320 1,602
173 100,000 167 1,667
174 273 1,348
175 89,512 95 315
178 55,000 167 1,111
179 134,640 83 917
180 418 1,500
181 281
182 134,000
183 147
184 50,000 268 1,715
185 490 1,688
186
187 37 213
188 125,000
189 1,733
190
191 346
MONTHLY MONTHLY MONTHLY MONTHLY
TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
--------------------------------------------------------------------------------------
2 4,000,000 189,963 25,367 0
3 123,904 46,446 0
4 107,972 10
4.01
4.02
4.03
4.04
4.05
5 53,060 5,453 5774.6 0
6 28,300 13,310 0
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 27,711 5,841 0
12 29,939 20,890 0
14 9,133 0
16 38,748 3,707 0
16.01
16.02
16.03
19 31,720 6,088 0
20 0
23 38,758 5,678 0
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 0
26 20,938 0
27 200,000 8,829 1,265 0
31 12,193 2,786 0
32 10,856 3,893 0
33 10,403 3,936 0
36 200,000 13,208 0
37 23,595 3,169 0
24,283 15,875 0
42 10,657 6,825 0
43 8,418 5,489 0
44 5,208 3,561 0
49 13,922 4,860 0
50 16,849 3,597 0
51 152,688 4,232 2,025 0
53 0
56 21,278 5,640 0
57 17,939 18,299 0
60 75,000 15,128 2,425 0
61 20,376 2,166 0
62 7,789 1,208 0
63 0
67 0
70 62,262 0
75 11,833 4,276 0
76 3,241 949 0
77 13,000 1,756 0
79 12,616 3,237 0
82 10,117 1,400 0
82.01
82.02
89 0
91 7,126 1,897 0
93 47,952 9,894 650 0
97 8,783 0
99 11,299 4,687 0
100 11,519 3,516 0
101 6,584 0
106 21,267 0
107 15,060 510 0
108 3,616 683 0
109 1,194 651 0
110 5,408 0
112 0
113 5,744 970 0
114 72,000 12,738 1,662 0
115 6,250 0
116 11,979 2,825 0
120 4,166 2,132 0
121 10,836 2,400 0
122 5,472 0
127 5,000 582 0
128 1,822 427 0
131 7,760 4,348 0
132 100,000 9,692 965 0
134 11,093 0
138 60,720 5,923 724 0
139 60,000 1,656 767 0
141 1,841 570 0
142 5,493 485 0
143 0
144 8,452 1,892 0
145 8,012 3,317 0
149 2,654 672 0
151 8,304 2,398 0
152 5,164 647 0
153 75,000 1,900 452 0
156 0
157 5,143 1,103 0
158 61,537 2,758 303 0
160 2,950 515 0
161 2,415 195 0
163 2,908 815 0
164 53,760 4,627 490 0
165 3,053 530 0
166 3,517 1,306 0
167 3,379 485 0
168 3,542 324 0
169 0
170 2,150 1,706 0
171 2,460 522 0
173 3,820 538 0
174 100,000 2,910 367 0
175 3,104 296 0
178 4,133 1,972 0
179 33,000 6,102 226 0
180 60,000 996 520 0
181 3,255 410 0
182 2,976 256 0
183 42,000 1,333 0
184 61,737 2,150 239 0
185 45,000 3,276 466 0
186 1,331 638 0
187 0
188 4,295 605 0
189 1,707 1,841 0
190 2,806 415 0
191 1,243 154 0
SCHEDULE III
FIRST TWO PAGES OF THE JUNE 15, 2006 FREE WRITING PROSPECTUS
[Attached]
