EXECUTION VERSION
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MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of August 8, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 3
2. CONVEYANCE OF MORTGAGE LOANS......................................... 3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER.................................................... 16
6. CLOSING.............................................................. 21
7. CLOSING DOCUMENTS.................................................... 22
8. COSTS................................................................ 24
9. NOTICES.............................................................. 24
10. SEVERABILITY OF PROVISIONS........................................... 25
11. FURTHER ASSURANCES................................................... 25
12. SURVIVAL............................................................. 25
13. GOVERNING LAW........................................................ 25
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT......................... 25
15. MISCELLANEOUS........................................................ 26
16. ENTIRE AGREEMENT..................................................... 26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)........................................................... 17
Agreement.................................................................. 2
Certificate Purchase Agreement............................................. 2
Certificates............................................................... 2
Closing Date............................................................... 3
Collateral Information..................................................... 11
Crossed Mortgage Loans..................................................... 17
Defective Mortgage Loan.................................................... 17
Final Judicial Determination............................................... 19
Indemnification Agreement.................................................. 14
Initial Purchaser.......................................................... 2
Master Servicer............................................................ 2
Material Breach............................................................ 16
Material Document Defect................................................... 16
Memorandum................................................................. 2
MERS....................................................................... 5
Mortgage File.............................................................. 4
Mortgage Loan Schedule..................................................... 3
Mortgage Loans............................................................. 2
Officer's Certificate...................................................... 7
Other Mortgage Loans....................................................... 2
Pooling and Servicing Agreement............................................ 2
Private Certificates....................................................... 2
Prospectus Supplement...................................................... 2
Public Certificates........................................................ 2
Purchaser.................................................................. 2
Repurchased Loan........................................................... 18
Seller..................................................................... 2
Servicing File............................................................. 9
Special Servicer........................................................... 2
Trust...................................................................... 2
Trustee.................................................................... 2
Underwriters............................................................... 2
Underwriting Agreement..................................................... 2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of August 8, 2006,
between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), and Xxxxxx Xxxxxxx
Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of August 1, 2006, between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, X.X. Xxxxxx Company, Inc., as special
servicer ("Special Servicer"), HSBC Bank USA, National Association, as trustee
("Trustee") and LaSalle Bank National Association, as paying agent, custodian,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans (the "Other Mortgage Loans") to be
purchased by Purchaser, the Trust will issue to the Depositor pass-through
certificates to be known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-HQ9 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement. The term "Master
Servicer" as used herein shall mean Xxxxx Fargo Bank, National Association in
its capacity as a master servicer under the Pooling and Servicing Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-4FL, Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates (the "Public Certificates") will be sold by Purchaser to Xxxxxx
Xxxxxxx & Co. Incorporated, LaSalle Financial Services, Inc., Greenwich Capital
Markets, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated August 8, 2006 (the "Underwriting Agreement"), and the
Class X, Class X-MP, Class X-RC, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class DP, Class
ST, Class R-I, Class R-II and Class R-III Certificates (the "Private
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated
(the "Initial Purchaser") pursuant to a Certificate Purchase Agreement, between
Purchaser and the Initial Purchaser, dated August 8, 2006 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by
a Prospectus Supplement dated August 8, 2006 (together with the Prospectus, the
"Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
August 8, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is August 1, 2006.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of (i) $1,471,351,415 plus (ii) the
50% pari passu interest of the Seller in the G&L Portfolio Mortgage Loan, which
such pari passu interest is represented by the related Mortgage Note with a
Cut-Off Date balance of $71,125,000. Seller and Principal Commercial Funding II,
LLC co-originated the G&L Portfolio Mortgage Loan, which will have an aggregate
balance as of the close of business on the Cut-Off Date, after giving effect to
any payments due on or before such date, whether or not received, of
$142,250,000. The sale of the Mortgage Loans shall take place on August 17, 2006
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The purchase price to be paid by Purchaser for the Mortgage
Loans shall equal the amount set forth as such purchase price on Exhibit 3
hereto. The purchase price shall be paid to Seller by wire transfer in
immediately available funds on the Closing Date. Notwithstanding anything to the
contrary contained herein, with respect to the G&L Portfolio Mortgage Loan,
references to a Mortgage Note herein shall mean the Mortgage Note related to the
G&L Portfolio Mortgage Loan.
1.2 On the Closing Date, Purchaser will assign to Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14), and Trustee shall succeed to such right, title and interest in
and to the Mortgage Loans and Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein, all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
August 1, 2006, will be executed by Seller and Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing Date.
The Mortgage Loan Schedule, as it may be amended from time to time on or prior
to the Closing Date, shall conform to the requirements of this Agreement and the
Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 5 in favor of Trustee,
Master Servicer and Special Servicer to empower Trustee, Master Servicer and, in
the event of the failure or incapacity of Trustee and Master Servicer, Special
Servicer, to submit for recording, at the expense of Seller, any Mortgage Loan
documents required to be recorded as described in the
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Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to Trustee). Seller
agrees to reasonably cooperate with Trustee, Master Servicer and Special
Servicer in connection with any additional powers of attorney or revisions
thereto that are requested by such parties for purposes of such recordation. The
parties hereto agree that no such power of attorney shall be used with respect
to any Mortgage Loan by or under authorization by any party hereto except to the
extent that the absence of a document described in the second preceding sentence
with respect to such Mortgage Loan remains unremedied as of the earlier of (i)
the date that is 180 days following the delivery of notice of such absence to
Seller, but in no event earlier than 18 months from the Closing Date, and (ii)
the date (if any) on which such Mortgage Loan becomes a Specially Serviced
Mortgage Loan. Custodian shall submit such documents for recording, at Seller's
expense, after the periods set forth above, provided, however, Custodian shall
not submit such assignments for recording if Seller produces evidence that it
has sent any such assignment for recording and certifies that Seller is awaiting
its return from the applicable recording office. In addition, not later than the
30th day following the Closing Date, Seller shall deliver to or on behalf of
Trustee each of the remaining documents or instruments specified in Section 2.2
hereof (with such exceptions and additional time periods as are permitted by
this Section 2) with respect to each Mortgage Loan (each, a "Mortgage File").
(Seller acknowledges that the term "without recourse" does not modify the duties
of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date
are to be held by or on behalf of Trustee in escrow on behalf of Seller at all
times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of HSBC Bank USA, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ9, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
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office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 90th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (ii) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation, a
certification by the appropriate county recording office where such document is
recorded that such copy is a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in blank or in
favor of "HSBC Bank USA, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-HQ9,"
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause Trustee to be
shown as the owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
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2.2.6 If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 90th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "HSBC Bank USA, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ9," which assignment may be effected in the related
Assignment of Mortgage, provided, if the related Mortgage has been recorded in
the name of MERS or its designee, no assignment of Assignment of Leases in favor
of Trustee will be required to be recorded or delivered and instead, Seller
shall take all actions as are necessary to cause Trustee to be shown as the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS
and shall deliver to Special Servicer evidence confirming that Trustee is shown
as the owner on the record of MERS;
2.2.7 The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report with an original Title Insurance Policy to follow
within 180 days of the Closing Date;
2.2.9 (A) Copies of UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements assigning such UCC
financing statements to Trustee executed and delivered in connection with the
Mortgage Loan, provided, if the related Mortgage has been recorded in the name
of MERS or its designee, no such financing statements will be required to be
recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and intercreditor
agreements (including, without limitation, any Intercreditor Agreement, any
Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan Pair
Intercreditor Agreement, and a copy (that is, not the
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original) of the mortgage note evidencing the related B Note), if any, related
to any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to Trustee on
behalf of the Trust with a copy to be held by Primary Servicer (or Master
Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement or (B) the original of each letter
of credit, if any, constituting additional collateral for such Mortgage Loan
(other than letters of credit representing tenant security deposits which have
been collaterally assigned to the lender), which shall be held by Primary
Servicer (or Master Servicer) on behalf of Trustee, with a copy to be held by
Trustee, and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement (it being understood that Seller
has agreed (a) that the proceeds of such letter of credit belong to the Trust,
(b) to notify, on or before the Closing Date, the bank issuing the letter of
credit that the letter of credit and the proceeds thereof belong to the Trust,
and to use reasonable efforts to obtain within 30 days (but in any event to
obtain within 90 days) following the Closing Date, an acknowledgement thereof by
the bank (with a copy of such acknowledgement to be sent to Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of Seller to
assign the letter of credit hereunder including the right and power to draw on
the letter of credit). In the case of clause (B) above, any letter of credit
held by Primary Servicer (or Master Servicer) acknowledges that any letter of
credit held by it shall be held in its capacity as agent of the Trust, and if
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, Primary Servicer (or Master Servicer) has agreed to assign the
applicable letter of credit to the Trust or at the direction of Special Servicer
to such party as Special Servicer may instruct, in each case, at the expense of
Primary Servicer (or Master Servicer). Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if
any, related to any Mortgage Loan;
2.2.14 Copies of third-party management agreements, if any, for all hotels
and for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off
Date principal balance equal to or greater than $20,000,000;
2.2.15 The original or a copy of any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to Primary Servicer within 30 days of the Closing Date.
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"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
Notwithstanding anything to the contrary contained herein, with respect to the
G&L Portfolio Mortgage Loan, delivery of the Mortgage File by either MSMC or
Principal Commercial Funding II, LLC shall satisfy the delivery requirement for
MSMC hereunder.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred
to in Sections 2.2.4 and 2.2.6 may be in the form of a single instrument
assigning the Mortgage and the Assignment of Leases to the extent permitted by
applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3,
2.2.5 or 2.2.6, with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90 day period, but Seller delivers a
photocopy thereof (certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof submitted for recording), to
Trustee within such 90 day period, Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as Trustee may consent to, which consent shall not be
unreasonably withheld so long as Seller is, as certified in writing to Trustee
no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
2.5 Trustee, as assignee or transferee of Purchaser, shall be entitled to all
scheduled payments of principal due thereon after the Cut-Off Date, all other
payments of principal collected after the Cut-Off Date (other than scheduled
payments of principal due on or before the Cut-Off Date), and all payments of
interest on the Mortgage Loans allocable to the period commencing on the Cut-Off
Date. All scheduled payments of principal and interest due on or before the
Cut-Off Date and collected after the Cut-Off Date shall belong to Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver, and
Purchaser, Trustee or the agents of either may submit or cause to be submitted
for recordation at the expense of Seller, in the appropriate public office for
real property records, each assignment referred to in clauses 2.2.4, 2.2.6(ii)
and 2.2.9(B) above (with recording information in blank if such information is
not yet available). If any such document or instrument is lost or returned
unrecorded or unfiled, as
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the case may be, because of a defect therein, Seller shall prepare a substitute
therefor or cure such defect, and Seller shall, at its own expense (except in
the case of a document or instrument that is lost by Trustee), record or file,
as the case may be, and deliver such document or instrument in accordance with
this Section 2.
2.7 As to each Mortgage Loan secured by a Mortgaged Property with respect to
which the related Mortgagor has entered into a franchise agreement and each
Mortgage Loan secured by a Mortgaged Property with respect to which a letter of
credit is in place, Seller shall provide a notice on or prior to the date that
is 30 days after the Closing Date to the franchisor or the issuing financial
institution, as applicable, of the transfer of such Mortgage Loan to the Trust
pursuant to the Pooling and Servicing Agreement, and inform such parties that
any notices to the Mortgagor's lender pursuant to such franchise agreement or
letter of credit should thereafter be forwarded to Master Servicer and, with
respect to each franchise agreement, provide a franchise comfort letter to the
franchisor on or prior to the date that is 30 days after the Closing Date. After
the Closing Date, with respect to any letter of credit that has not yet been
assigned to the Trust, upon the written request of Master Servicer or the
applicable Primary Servicer, Seller will draw on such letter of credit as
directed by Master Servicer or such Primary Servicer in such notice to the
extent Seller has the right to do so.
2.8 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the servicing of any Mortgage Loans and that are
not required to be a part of the Mortgage File and are reasonably necessary for
the ongoing administration and/or servicing of the applicable Mortgage Loan (the
"Servicing File") shall be delivered to Trustee shall be shipped by Seller to or
at the direction of Master Servicer, on behalf of Purchaser, on or prior to the
75th day after the Closing Date, in accordance with Section 3.1 of the Primary
Servicing Agreement, if applicable.
2.9 The documents required to be delivered to Master Servicer (or in the
alternative, Primary Servicer) shall include, to the extent required to be (and
actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses or data. Delivery of
any of the foregoing documents to Primary Servicer shall be deemed a delivery to
Master Servicer and satisfy Seller's obligations under this subparagraph. Each
of the foregoing items may be delivered by Seller in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to Master Servicer.
2.10 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this
Agreement, the ownership of each Mortgage Note, Mortgage and the other contents
of the related Mortgage File shall be vested in Purchaser and its assigns, and
the ownership of all records and documents
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constituting the Servicing File with respect to the related Mortgage Loan
prepared by or that come into the possession of Seller shall immediately vest in
Purchaser and its assigns, and shall be delivered promptly by Seller to or on
behalf of either Trustee or Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from Seller to
Purchaser and its assigns as a sale.
2.11 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.11.1 this Agreement shall be deemed to be a security agreement; and
2.11.2 the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.12 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
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relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
2.13 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.14 Seller shall, to the extent consistent with this Agreement and upon request
by or on behalf of Purchaser, take such reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. In such case, Seller
hereby authorizes Master Servicer to file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
2.15 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note (endorsed as described in clause 2.2.1) required to be
delivered to or on behalf of Trustee or Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or Trustee to cause Seller to cure any Material
Document Defect or Material Breach (each as defined below), or to repurchase or
replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency to
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examine and audit all books, records and files pertaining to the Mortgage Loans,
Seller's underwriting procedures and Seller's ability to perform or observe all
of the terms, covenants and conditions of this Agreement. Such examinations and
audits shall take place at one or more offices of Seller during normal business
hours and shall not be conducted in a manner that is disruptive to Seller's
normal business operations upon reasonable prior advance notice. In the course
of such examinations and audits, Seller will make available to such
representatives of any of Purchaser, each Underwriter, each Initial Purchaser,
Trustee, Special Servicer and each Rating Agency reasonably adequate facilities,
as well as the assistance of a sufficient number of knowledgeable and
responsible individuals who are familiar with the Mortgage Loans and the terms
of this Agreement, and Seller shall cooperate fully with any such examination
and audit in all material respects. On or prior to the Closing Date, Seller
shall provide Purchaser with all material information regarding Seller's
financial condition and access to knowledgeable financial or accounting officers
for the purpose of answering questions with respect to Seller's financial
condition, financial statements as provided to Purchaser or other developments
affecting Seller's ability to consummate the transactions contemplated hereby or
otherwise affecting Seller in any material respect. Within 45 days after the
Closing Date, Seller shall provide Master Servicer or Primary Servicer, if
applicable, with any additional information identified by Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
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4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of Purchaser and its assigns with respect to each Mortgage Loan
(subject to the last paragraph of this Section 4.1) as of the date hereof (or as
of such other date specifically set forth in the particular representation and
warranty) each of the representations and warranties set forth on Exhibit 2
hereto, except as otherwise set forth on Schedule A attached thereto, and hereby
further represents and warrants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. Seller has the requisite
power and authority and legal right to own the Mortgage Loans and to transfer
and convey the Mortgage Loans to Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation,
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order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated August 8, 2006, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (when read together with the Final Prospectus Supplement,
in the case of Public Certificates, or when read together with the Memorandum,
in the case of the Private Certificates). Notwithstanding anything contained
herein to the contrary, this subparagraph 4.1.7 shall run exclusively to the
benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, provided that any representations
and warranties made as of a specified date shall be true and correct in all
material respects as of such specified date.
4.1.8 Seller has complied with the disclosure requirements of Regulation AB
that arise from its role as "seller" and "sponsor" in connection with the
issuance of the Certificates.
4.1.9 For so long as the Trust is subject to the reporting requirements of
the Exchange Act, Seller shall provide Purchaser (or with respect to any
Serviced Companion Mortgage Loan that is deposited into an Other Securitization,
the depositor in such Other Securitization) and the Paying Agent with any
Additional Form 10-D Disclosure and any Additional Form 10-K
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Disclosure set forth next to Seller's name on Schedule XV and Schedule XVI of
the Pooling and Servicing Agreement within the time periods set forth in the
Pooling and Servicing Agreement.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court,
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administrative agency or other tribunal, the outcome of which could reasonably
be expected to adversely affect the transfer of the Mortgage Loans, the issuance
of the Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of Purchaser that would materially
and adversely affect the ability of Purchaser to perform its obligation under
this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of Trustee
on behalf of the holders of the Certificates, whether directly or by way of
Purchaser's assignment of its rights hereunder to Trustee, the representations
and warranties set forth on Exhibit 2 hereto (each as of the date hereof unless
otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to Trustee pursuant to Section 2 is not delivered as and when required
(and including the expiration of any grace or cure period), is not properly
executed or is defective on its face, or if there is a breach of any of the
representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph 42 of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document
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Defect or Material Breach, Master Servicer shall, and Special Servicer may,
request that Seller, not later than 90 days from Seller's receipt of the notice
of such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90 day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage"(as defined
in the Code) but Seller is diligently attempting to effect such correction or
cure, as certified by Seller in an Officer's Certificate delivered to Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90 day period, then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to Seller by Trustee pursuant
to Section 2.2 of the Pooling and Servicing Agreement not less than 90 days
prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by Seller of any Material Document
Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured in all material respects
within the above cure periods, Seller shall, on or before the termination of
such cure periods, either (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from Purchaser or its assignee at the Purchase Price as defined in
the Pooling and Servicing Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at its option replace, without recourse, any Mortgage Loan or REO
Mortgage Loan to which such defect relates with a Qualifying Substitute Mortgage
Loan. If such Material Document Defect or Material Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence or the previous paragraph, repurchase
or substitution must occur within 90 days from the date Seller was notified of
the breach or defect. Seller agrees that any substitution shall be completed in
accordance with the terms and conditions of the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to repurchase or replace each such Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case of such breach
or document defect, (A) Seller provides a Nondisqualification Opinion to Trustee
at the expense of Seller if Trustee acting at the direction of the Controlling
Class determines that it would be usual and customary in accordance with
17
industry practice to obtain a Nondisqualification Opinion and (B) both of the
following conditions would be satisfied if Seller were to repurchase or replace
only those Mortgage Loans as to which a Material Breach or Material Document
Defect had occurred without regard to this paragraph (the "Affected Loan(s)"):
(i) the debt service coverage ratio for all such other Mortgage Loans (excluding
the Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the greater of (A) the debt service
coverage ratio for all such Crossed Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (B) 1.25x, and (ii) the loan-to-value ratio for all
such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (A) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (B) 75%. The determination
of Master Servicer as to whether the conditions set forth above have been
satisfied shall be conclusive and binding in the absence of manifest error.
Master Servicer will be entitled to cause to be delivered, or direct Seller to
(in which case Seller shall) cause to be delivered to Master Servicer: (A) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of Seller if the scope and cost of the
Appraisal is approved by Seller (such approval not to be unreasonably withheld)
and (B) an opinion of counsel that not requiring the repurchase of each such
other Mortgage Loan will not result in an Adverse REMIC Event.
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while Trustee (as assignee of
Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
5.6 Upon occurrence (and after any applicable cure or grace period), any of the
following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (a) the absence
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from the Mortgage File of the original signed Mortgage Note, unless the Mortgage
File contains a signed lost note affidavit and indemnity that appears to be
regular on its face; (b) the absence from the Mortgage File of the original
signed Mortgage that appears to be regular on its face, unless there is included
in the Mortgage File a certified copy of the Mortgage by the local authority
with which the Mortgage was recorded; or (c) the absence from the Mortgage File
of the item specified in paragraph 2.2.8. If any of the foregoing Material
Document Defects is discovered by the Custodian (or Trustee if there is no
Custodian), Trustee (or as set forth in Section 2.3(a) of the Pooling and
Servicing Agreement, Master Servicer) will take the steps described elsewhere in
this Section, including the giving of notices to the Rating Agencies and the
parties hereto and making demand upon Seller for the cure of the Material
Document Defect or repurchase or replacement of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists
with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction
or cure of such Material Document Defect or Material Breach, (ii) to repurchase
the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than Seller shall
be without (i) recourse of any kind (either express or implied) by such Person
against Seller and (ii) representation or warranty of any kind (either express
or implied) by Seller to or for the benefit of such Person.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or REO
Properties, as applicable, in accordance with Section 9.36 of the Pooling and
Servicing Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. After a final liquidation of the Mortgage Loan
or REO Mortgage Loan, if a court of competent jurisdiction issues a final order
after the expiration of any applicable appeal period that Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan (a "Final
Judicial Determination") or Seller otherwise accepts liability, then, but in no
event later than the Termination of the Trust pursuant to Section 9.30 of the
Pooling and Servicing Agreement, Seller will be obligated to pay to the Trust
the difference between any Liquidation Proceeds received upon such liquidation
in accordance with the Pooling and Servicing Agreement (including those arising
from any sale to Seller) and the Purchase Price. With respect
19
to the G&L Portfolio Mortgage Loan, Seller's obligation shall be Seller's pro
rata share based on Seller's percentage interest as of the date hereof in such
Mortgage Loan.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, Special Servicer shall not receive a Liquidation
Fee from Seller (but may collect such Liquidation Fee from the related
Liquidation Proceeds as otherwise provided herein); provided, however, that in
the event Seller is obligated to repurchase the Mortgage Loan or REO Mortgaged
Property after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to any
Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Mortgaged Property. Except as expressly set
forth above, no Liquidation Fee shall be payable in connection with a repurchase
of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 of Exhibit 2 hereto
because the underlying loan documents do not provide for the payment by the
Mortgagor of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan, and the related Mortgagor's payments made for the
reasonable costs and expenses associated with the defeasance or assumption of a
Mortgage Loan are insufficient and cause the Trust to incur an Additional Trust
Expense in an amount equal to such reasonable costs and expenses not paid by
such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within
90 days of the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. With respect to the G&L Portfolio Mortgage Loan,
Seller's obligation shall be Seller's pro rata share based on Seller's
percentage interest as of the date hereof in such Mortgage Loan. The parties
hereto acknowledge that such reimbursement shall be Seller's sole obligation
with respect to the breach discussed in the previous sentence.
5.13 The Pooling and Servicing Agreement shall provide that Trustee (or Master
Servicer or Special Servicer on its behalf) shall give written notice promptly
(but in any event within three Business Days) to Seller of its discovery of any
Material Document Defect or Material Breach and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan
(as defined in the Pooling and Servicing Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by Trustee of the Purchase Price
therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage
Loan documents with respect to such Mortgage Loan, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to Trustee
shall be endorsed and assigned to Seller in the same manner such that Seller
20
shall be vested with legal and beneficial title to such Mortgage Loan, in each
case without recourse, including any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policies with respect thereto.
5.15 In the event that the Mortgage Note with respect to the G&L Portfolio
Mortgage Loan is repurchased by Seller pursuant to this Section 5, and the other
related mortgage note of the G&L Portfolio Mortgage Loan is not repurchased by
Xxxxxx Xxxxxxx Mortgage Capital Inc. and such mortgage note remains in the
Trust, Seller and Purchaser hereby agree that the provisions in Section 8.31 of
the Pooling and Servicing Agreement shall govern the servicing and
administration of such Mortgage Loan, and Seller's and Purchaser's rights and
obligations with respect thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date, provided that any representations and warranties
made as of a specified date shall be true and correct as of such specified date
(to the extent of the standard, if any, set forth in each representation and
warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms as
are agreed upon and reasonably acceptable to Seller or Purchaser, as applicable,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its designee
all documents required to be delivered to Purchaser as of the Closing Date
pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
21
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and
dated the Closing Date, and upon which Purchaser and its successors and assigns
may rely, to the effect that: (i) the representations and warranties of Seller
in this Agreement are true and correct in all material respects on and as of the
Closing Date with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws or other organizational documents.
7.4 A certificate of existence for Seller from the Secretary of State of New
York dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
22
7.6.3 No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
23
7.7 A "10b-5" opinion of counsel addressed to Purchaser and the Underwriters, in
form reasonably acceptable to Purchaser and the Underwriters, as to the
disclosure provided by Seller to Purchaser in connection with the Certificates.
7.8 An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as such term is defined in Regulation AB)
in connection with the Certificates. Such other opinions of counsel as any
Rating Agency may request in connection with the sale of the Mortgage Loans by
Seller to Purchaser or Seller's execution and delivery of, or performance under,
this Agreement.
7.9 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
7.10 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.11 An officer's certificate of Purchaser, dated as of the Closing Date, with
the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.12 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.13 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding dated August 8, 2006.
9. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend (or such other address as may hereafter
be furnished in writing by Purchaser), or if (ii) to Seller, addressed to Seller
at Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Deutsch (or to such other address as Seller may
designate in writing).
24
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to Trustee as
may be required to effect the purposes of the Pooling and Servicing Agreement
and, upon such assignment, Trustee shall succeed to the rights and obligations
hereunder of Purchaser. No owner of a Certificate issued pursuant to the Pooling
25
and Servicing Agreement shall be deemed a successor or permitted assigns because
of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
26
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
MSCI 2006-HQ8
MORTGAGE SCHEDULE
ORIGINAL REMAINING
MORTGAGE CUT-OFF TERM TERM ORIGINAL REMAINING
MORTGAGE LOAN DATE TO TO AMORT. AMORT. MORTGAGE
LOAN NO. SELLER PROPERTY NAME BALANCE NOTE DATE MATURITY MATURITY TERM TERM RATE
-------- -------- ---------------- ------------ ---------- -------- --------- -------- --------- --------
1 MSMC Cherry Creek $250,000,000 05/11/2006 120 118 IO IO 5.240%
Shopping Center
3 MSMC 000 Xxxxxxxx $215,000,000 05/09/2006 84 82 IO IO 5.950%
4 PCF G&L Portfolio - $ 26,180,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC Regents Medical
Center (I)
5 PCF G&L Portfolio - $ 25,870,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC 000 Xxxxx
Xxxxxxx (I)
6 PCF G&L Portfolio - $ 23,430,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC 405 Bedford (I)
7 PCF G&L Portfolio - $ 19,380,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC 416 Bedford (I)
8 PCF G&L Portfolio - $ 19,000,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC Xxxxxxx Oaks
Medical (I)
9 PCF G&L Portfolio - $ 16,560,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC Xxxxx Building
(I)
10 PCF G&L Portfolio - $ 11,830,000 07/20/2006 120 120 IO IO 6.180%
II/MSMC 415 Bedford (I)
11 MSMC Millennium $ 51,236,495 06/01/2006 120 118 360 358 5.862%
Retail - San
Francisco (II)
12 MSMC Millennium $ 38,822,624 06/01/2006 120 118 360 358 5.862%
Retail -
Washington DC
(II)
13 MSMC Millennium $ 19,733,370 06/01/2006 120 118 360 358 5.862%
Retail -
Georgetown (II)
14 MSMC 00 Xxxxx Xxxxxx $ 75,000,000 06/09/2006 120 118 360 360 6.317%
00 XXXX Xxxxxxxxxx Xxxx $ 60,000,000 05/25/2006 120 118 IO IO 5.901%
17 MSMC 633 Indiana $ 53,000,000 06/01/2006 120 118 IO IO 6.000%
Avenue NW
PREPAYMENT CODE
MONTHLY MONTHLY ----------------------------------------
MORTGAGE PAYMENT PAYMENT DEF/YM1.
LOAN NO. (P&I) (IO) SEASONING LO DEF 00 YM1.00 YM OPEN
-------- -------- ---------- --------- -- --- -------- ------ -- ----
1 NAP $1,106,829 2 26 90 4
3 NAP $1,080,848 2 26 54 4
4 NAP $ 136,700 0 24 83 13
5 NAP $ 135,081 0 24 83 13
6 NAP $ 122,340 0 24 83 13
7 NAP $ 101,193 0 24 83 13
8 NAP $ 99,209 0 24 83 13
9 NAP $ 86,469 0 24 83 13
10 NAP $ 61,771 0 24 83 13
11 $303,230 NAP 2 26 90 4
12 $229,761 NAP 2 26 90 4
13 $116,787 NAP 2 26 90 4
14 $465,046 $ 400,277 2 26 90 4
15 NAP $ 299,148 2 26 90 4
17 NAP $ 268,681 2 26 93 1
EXCESS
MORTGAGE ADMINISTRATIVE TRUSTEE SERVICING MORTGAGE
LOAN NO. COST RATE FEE RATE FEE RATE LOAN NO.
-------- -------------- -------- --------- --------
1 2.088 1
3 2.088 3
4 3.088 4
5 3.088 5
6 3.088 6
7 3.088 7
8 3.088 8
9 3.088 9
10 3.088 10
11 2.088 11
12 2.088 12
13 2.088 13
14 2.088 14
15 2.088 15
17 2.088 17
1-1
24 MSMC Marriott - $3,290,915 06/14/2006 120 119 360 360 6.294%
Denver South,
CO (IV)
25 MSMC Marriott - $2,355,667 06/14/2006 120 119 360 360 6.294%
Midway (IV)
26 MSMC Renaissance $2,131,577 06/14/2006 120 119 360 360 6.294%
Hotel -
Plantantion, FL
(IV)
27 MSMC Marriott - $1,852,739 06/14/2006 120 119 360 360 6.294%
Austin Airport
So. (IV)
28 MSMC Hilton Garden $1,800,206 06/14/2006 120 119 360 360 6.294%
Inn - Chicago
Midway (IV)
29 MSMC Residence Inn - $1,676,218 06/14/2006 120 119 360 360 6.294%
Plantation, FL
(IV)
30 MSMC Renaissance - $1,582,881 06/14/2006 120 119 360 360 6.294%
Broomfield, CO
(IV)
00 XXXX Xxxxxxxxx - $1,527,363 06/14/2006 120 119 360 360 6.294%
Salt Lake City
(IV)
32 MSMC Residence Inn $1,479,813 06/14/2006 120 119 360 360 6.294%
Galleria -
Houston, Texas
(IV)
33 MSMC Hampton Inn $1,391,467 06/14/2006 120 119 360 360 6.294%
-Chicago Midway
Airport (IV)
34 MSMC Marriott - $1,160,394 06/14/2006 120 119 360 360 6.294%
Pontiac, MI (IV)
35 MSMC Holiday Inn $1,083,600 06/14/2006 120 119 360 360 6.294%
Express -
Chicago Midway
(IV)
00 XXXX Xxxxxxxxx - $1,054,560 06/14/2006 120 119 360 360 6.294%
Austin XX
Xxxxxx Xxxx (IV)
37 MSMC Springhill $1,013,714 06/14/2006 120 119 360 360 6.294%
Suites - Austin
So. (IV)
38 MSMC Residence Inn - $ 972,166 06/14/2006 120 119 360 360 6.294%
Round Rock (IV)
39 MSMC Residence Inn - $ 964,628 06/14/2006 120 119 360 360 6.294%
Austin NW (IV)
00 XXXX Xxxxxxxxx - $ 892,386 06/14/2006 120 119 360 360 6.294%
Xxxxxxx (IV)
41 MSMC Residence Inn - $ 882,690 06/14/2006 120 119 360 360 6.294%
Pontiac, MI (IV)
24 $20,357 $17,501 1 25 59 36
25 $14,572 $12,527 1 25 59 36
26 $13,186 $11,335 1 25 59 36
27 $11,461 $ 9,853 1 25 59 36
28 $11,136 $ 9,573 1 25 59 36
29 $10,369 $ 8,914 1 25 59 36
30 $ 9,791 $ 8,418 1 25 59 36
31 $ 9,448 $ 8,122 1 25 59 36
32 $ 9,154 $ 7,869 1 25 59 36
33 $ 8,607 $ 7,400 1 25 59 36
34 $ 7,178 $ 6,171 1 25 59 36
35 $ 6,703 $ 5,762 1 25 59 36
36 $ 6,523 $ 5,608 1 25 59 36
37 $ 6,271 $ 5,391 1 25 59 36
38 $ 6,014 $ 5,170 1 25 59 36
39 $ 5,967 $ 5,130 1 25 59 36
40 $ 5,520 $ 4,746 1 25 59 36
41 $ 5,460 $ 4,694 1 25 59 36
24 2.088 24
25 2.088 25
26 2.088 26
27 2.088 27
28 2.088 28
29 2.088 29
30 2.088 30
31 2.088 31
32 2.088 32
33 2.088 33
34 2.088 34
35 2.088 35
36 2.088 36
37 2.088 37
38 2.088 38
39 2.088 39
40 2.088 40
41 2.088 41
1-2
42 MSMC Residence Inn - $870,545 06/14/2006 120 119 360 360 6.294%
Xxxxxxxxxx (IV)
43 MSMC Sleep Inn - $867,873 06/14/2006 120 119 360 360 6.294%
Chicago Midway
(IV)
44 MSMC Springhill $850,926 06/14/2006 120 119 360 360 6.294%
Suites
Xxxxxxxxxx (IV)
00 XXXX Xxxxxxxxx Inn $846,559 06/14/2006 120 119 360 360 6.294%
Brandon -
Tampa, Florida
(IV)
00 XXXX Xxxxxxxxx - $816,342 06/14/2006 120 119 360 360 6.294%
Fort Xxxxx, IN
(IV)
00 XXXX Xxxxxxxxx - $794,126 06/14/2006 120 119 360 360 6.294%
Louisville
Northeast (IV)
00 XXXX Xxxxxxxxx - $768,537 06/14/2006 120 119 360 360 6.294%
Merrillville
(IV)
49 MSMC Residence Inn - $708,652 06/14/2006 120 119 360 360 6.294%
Louisville, CO
(IV)
50 MSMC Residence Inn - $700,599 06/14/2006 120 119 360 360 6.294%
Fishers
Indianapolis
(IV)
00 XXXX Xxxxxxxxx $693,537 06/14/2006 120 119 360 360 6.294%
Sugarland -
Stafford, Texas
(IV)
52 MSMC Residence Inn $630,380 06/14/2006 120 119 360 360 6.294%
Sugarland -
Houston, TX (IV)
53 MSMC Fairfield Inn - $628,599 06/14/2006 120 119 360 360 6.294%
Merrillville
(IV)
00 XXXX Xxxxxxxxx - $608,144 06/14/2006 120 119 360 360 6.294%
Mesquite (IV)
55 MSMC Residence Inn - $597,751 06/14/2006 120 119 360 360 6.294%
Merrillville
(IV)
00 XXXX Xxxxxxxxx - $590,351 06/14/2006 120 119 360 360 6.294%
Mishawaka (IV)
00 XXXX Xxxxxxxxx - $580,802 06/14/2006 120 119 360 360 6.294%
Pontiac, MI (IV)
58 MSMC Residence Inn - $576,026 06/14/2006 120 119 360 360 6.294%
Austin South
(IV)
42 $5,385 $4,629 1 25 59 36
43 $5,369 $4,615 1 25 59 36
44 $5,264 $4,525 1 25 59 36
45 $5,237 $4,502 1 25 59 36
46 $5,050 $4,341 1 25 59 36
47 $4,912 $4,223 1 25 59 36
48 $4,754 $4,087 1 25 59 36
49 $4,384 $3,769 1 25 59 36
50 $4,334 $3,726 1 25 59 36
51 $4,290 $3,688 1 25 59 36
52 $3,899 $3,352 1 25 59 36
53 $3,888 $3,343 1 25 59 36
54 $3,762 $3,234 1 25 59 36
55 $3,698 $3,179 1 25 59 36
56 $3,652 $3,139 1 25 59 36
57 $3,593 $3,089 1 25 59 36
58 $3,563 $3,063 1 25 59 36
42 2.088 42
43 2.088 43
44 2.088 44
45 2.088 45
46 2.088 46
47 2.088 47
48 2.088 48
49 2.088 49
50 2.088 50
51 2.088 51
52 2.088 52
53 2.088 53
54 2.088 54
55 2.088 55
56 2.088 56
57 2.088 57
58 2.088 58
1-3
59 MSMC Hampton Inn $ 486,083 06/14/2006 120 119 360 360 6.294%
-Merrillville
(IV)
60 MSMC Holiday Inn $ 433,534 06/14/2006 120 119 360 360 6.294%
Express -
Merrillville
(IV)
00 XXXX Xxxxxxxxx - $ 394,180 06/14/2006 120 119 360 360 6.294%
Valparaiso (IV)
62 MSMC Fairfield Inn - $ 361,278 06/14/2006 120 119 360 360 6.294%
Austin So. (IV)
63 MSMC Holiday Inn $ 340,782 06/14/2006 120 119 360 360 6.294%
Select Grand
Rapids -
Kentwood,
Michigan (IV)
64 MSMC Residence Inn - $ 284,994 06/14/2006 120 119 360 360 6.294%
South Bend,
Indiana (IV)
00 XXXX Xxxxxxxxx - $ 218,152 06/14/2006 120 119 360 360 6.294%
Benton Harbor,
Michigan (IV)
66 MSMC Fairfield Inn - $ 190,492 06/14/2006 120 119 360 360 6.294%
Valparaiso,
Indiana (IV)
68 MSMC Xxxx-Xxxxxxx, $13,478,070 09/30/2005 120 110 227 217 5.957%
Central Park (V)
69 MSMC Xxxx-Xxxxxxx, $ 8,943,392 09/30/2005 120 110 227 217 5.957%
Washington (V)
70 MSMC Xxxx-Xxxxxxx, $ 7,431,833 09/30/2005 120 110 227 217 5.957%
Battery Park (V)
71 MSMC Xxxx-Xxxxxxx, $ 5,920,274 09/30/2005 120 110 227 217 5.957%
Boston (V)
72 MSMC Xxxx-Xxxxxxx, $ 3,275,045 09/30/2005 120 110 227 217 5.957%
Georgetown (V)
73 MSMC Residence Inn - $18,154,670 06/14/2006 120 119 360 360 6.294%
Indianapolis
Canal (VI)
00 XXXX Xxxxxxxxx - $17,901,100 06/14/2006 120 119 360 360 6.294%
Indianapolis
Capitol (VI)
79 MSMC Voice of $30,250,000 03/31/2006 120 116 360 360 5.680%
America Phase II
84 MSMC 50 Emjay $21,989,856 02/13/2006 120 115 360 355 5.570%
Boulevard
87 MSMC GE Capital FFC $20,259,630 06/23/2006 126 119 360 353 5.900%
Xxxxxx Xxxxxxxx
00 XXXX Xxxxxxx XX $ 5,047,916 05/16/2006 120 118 300 298 6.750%
Retail
Portfolio
-East Side
Shopping Center
(A)
59 $ 3,007 $ 2,585 1 25 59 36
60 $ 2,682 $ 2,305 1 25 59 36
61 $ 2,438 $ 2,096 1 25 59 36
62 $ 2,235 $ 1,921 1 25 59 36
63 $ 2,108 $ 1,812 1 25 59 36
64 $ 1,763 $ 1,516 1 25 59 36
65 $ 1,349 $ 1,160 1 25 59 36
66 $ 1,178 $ 1,013 1 25 59 36
68 $101,663 NAP 10 35 81 4
69 $ 67,458 NAP 10 35 81 4
70 $ 56,057 NAP 10 35 81 4
71 $ 44,656 NAP 10 35 81 4
72 $ 24,703 NAP 10 35 81 4
73 $112,301 $ 96,544 1 25 59 36
74 $110,733 $ 95,195 1 25 59 36
79 $175,188 $145,172 4 28 88 4
84 $126,454 NAP 5 29 66 25
87 $121,000 NAP 7 31 91 4
89 $ 34,960 NAP 2 26 90 4
59 2.088 59
60 2.088 60
61 2.088 61
62 2.088 62
63 2.088 63
64 2.088 64
65 2.088 65
66 2.088 66
68 3.088 68
69 3.088 69
70 3.088 70
71 3.088 71
72 3.088 72
73 2.088 73
74 2.088 74
79 2.088 79
84 2.088 84
87 2.088 87
89 2.088 89
1-4
90 MSMC Central PA $ 4,703,740 05/16/2006 120 118 300 298 6.750%
Retail
Portfolio -
Village Center
at Xxxxxx (A)
00 XXXX Xxxxxxx XX $ 3,940,567 05/16/2006 120 118 300 298 6.750%
Retail
Portfolio -
Village Center
at Lords Valley
(A)
00 XXXX Xxxxxxx XX $ 2,773,361 05/16/2006 120 118 300 298 6.750%
Retail
Portfolio -
Village Center
at Duryea (A)
00 XXXX Xxxxxxx XX $ 1,915,415 05/16/2006 120 118 300 298 6.750%
Retail
Portfolio -
Union Boulevard
Shopping Plaza
(A)
95 MSMC 601 Indiana $17,500,000 06/01/2006 120 118 IO IO 6.000%
Xxxxxx XX
00 XXXX Xxxx Xxxxxx Xxxx $17,500,000 06/22/2006 240 239 240 240 6.750%
00 XXXX Xxxxxxx Xxxxxxx $16,400,000 03/30/2006 120 116 360 360 5.460%
Shopping Center
99 MSMC Washington $15,648,896 01/03/2006 120 114 360 354 5.560%
Green Shopping
Center
102 MSMC One Chatham $14,850,000 02/02/2006 120 115 360 360 5.500%
Center
000 XXXX Xxxxxx Xxxxx $13,750,000 01/26/2006 120 114 360 360 5.500%
Shopping Center
110 MSMC Page Plaza $11,300,000 01/31/2006 120 114 360 360 5.550%
111 MSMC Xxxxxx $ 3,445,000 03/10/2006 120 116 360 360 5.570%
Portfolio -
Xxxxxx Village
(B)
112 MSMC Xxxxxx $ 2,210,000 03/10/2006 120 116 360 360 5.570%
Portfolio -
Southbrook
Apartments (B)
113 MSMC Xxxxxx $ 2,010,000 03/10/2006 120 116 360 360 5.570%
Portfolio -
Meadowbrook
Apartments (B)
114 MSMC Xxxxxx $ 1,872,000 03/10/2006 120 116 360 360 5.570%
Portfolio -
Sheboygan
Regency House
(B)
90 $ 32,576 NAP 2 26 90 4
91 $ 27,291 NAP 2 26 90 4
92 $ 19,207 NAP 2 26 90 4
93 $ 13,266 NAP 2 26 90 4
95 NAP $88,715 2 26 93 1
96 $133,064 $99,805 1 25 211 4
97 $ 92,706 $75,656 4 28 88 4
99 $ 90,021 NAP 6 30 86 4
102 $ 84,317 $69,008 5 29 84 7
106 $ 78,071 $63,896 6 30 86 4
110 $ 64,515 $52,988 6 47 69 4
111 $ 19,712 $16,213 4 28 88 4
112 $ 12,645 $10,401 4 28 88 4
113 $ 11,501 $ 9,459 4 28 88 4
114 $ 10,711 $ 8,810 4 28 88 4
90 2.088 90
91 2.088 91
92 2.088 92
93 2.088 93
95 2.088 95
96 2.088 96
97 2.088 97
99 2.088 99
102 2.088 102
106 2.088 106
110 2.088 110
111 2.088 111
112 2.088 112
113 2.088 113
114 2.088 114
1-5
115 MSMC Xxxxxx $ 1,680,000 03/10/2006 120 116 360 360 5.570%
Portfolio -
Janesville
Regency House
(B)
117 MSMC Xxxxxx $10,426,104 02/14/2006 120 115 300 295 5.790%
Furniture &
Interiors - Ft.
Xxxxx
000 XXXX Xxxxxxxxx $ 9,841,154 12/29/2005 120 113 360 353 5.510%
Commons
Shopping Center
130 MSMC University of $ 8,384,026 02/10/2006 120 115 360 355 5.680%
Xxxxxxx Xxxxxxxx
000 XXXX Xxx Xxxxx $ 1,912,600 03/23/2006 120 116 360 356 5.790%
Apartment
Portfolio -
Xxxxxxxx Apts.
(XII)
000 XXXX Xxx Xxxxx $ 1,544,029 03/23/2006 120 116 360 356 5.790%
Apartment
Portfolio -
First Street
Apts. (XII)
000 XXXX Xxx Xxxxx $ 1,474,299 03/23/2006 120 116 360 356 5.790%
Apartment
Portfolio -
Madison Street
Apt (XII)
000 XXXX Xxx Xxxxx $ 1,434,453 03/23/2006 120 116 360 356 5.790%
Aptartment
Portfolio -
Chelsea Apts.
(XII)
000 XXXX Xxx Xxxxx $ 1,354,761 03/23/2006 120 116 360 356 5.790%
Apartment
Portfolio -
Second Street
Apts (XII)
000 XXXX Xxxxxx at $ 7,620,000 06/13/2006 120 119 360 360 6.390%
Elders Pond
138 MSMC Horizon at $ 7,500,000 06/08/2006 120 119 360 360 6.230%
Hillcrest
Apartments
000 XXXX Xxxxxxxx Xxxxxx $ 7,351,376 01/31/2006 120 114 360 354 5.440%
Retail
141 MSMC Keebler Krossing $ 7,173,815 03/16/2006 120 116 360 356 6.050%
142 MSMC Hampton Inn & $ 6,991,632 06/02/2006 120 119 300 299 6.330%
Suites
Xxxxxxxxxxx
000 $ 9,613 $ 7,906 4 28 88 4
117 $66,310 NAP 5 29 87 4
118 $56,359 NAP 7 31 85 4
130 $48,792 NAP 5 29 87 4
132 $11,254 NAP 4 28 88 4
133 $ 9,085 NAP 4 28 88 4
134 $ 8,675 NAP 4 28 88 4
135 $ 8,440 NAP 4 28 88 4
136 $ 7,971 NAP 4 28 88 4
137 $47,614 $41,140 1 25 91 4
138 $46,081 $39,478 1 25 91 4
139 $41,738 NAP 6 30 86 4
141 $43,399 NAP 4 28 88 4
142 $46,524 NAP 1 25 91 4
115 2.088 115
117 2.088 117
118 2.088 118
130 2.088 130
132 7.088 132
133 7.088 133
134 7.088 134
135 7.088 135
136 7.088 136
137 2.088 137
138 2.088 138
139 2.088 139
141 2.088 141
142 2.088 142
1-6
143 MSMC Comfort Suites $6,972,787 04/13/2006 120 117 300 297 6.180%
- Northlake
144 MSMC Monroe Medical $6,954,449 01/12/2006 120 114 360 354 5.490%
Arts Building
145 MSMC Muncie Family $6,900,000 07/21/2006 120 120 360 360 5.900%
Xxxxxxxxxx
000 XXXX Xxxxxxxxxx $6,850,000 03/23/2006 120 116 360 360 5.725%
Courts
000 XXXX Xx. Hood $6,780,109 04/28/2006 120 117 360 357 5.600%
Xxxxxxxxxxxx
Xxxxx
000 XXXX Xxxxxxxx Office $6,452,458 12/16/2005 120 113 360 353 5.600%
Park
150 MSMC 228 Saugatuck $6,425,000 04/20/2006 120 117 360 360 5.890%
Avenue
151 MSMC Alderbrooke $6,400,000 03/10/2006 120 116 360 360 5.840%
Apartments
152 MSMC Homewood Suites $6,367,194 06/05/2006 120 119 300 299 6.210%
- Pinehurst, NC
155 MSMC Comfort Suites $5,983,724 05/01/2006 120 118 300 298 6.030%
- Atlanta
157 MSMC 2174 White $5,800,000 03/22/2006 120 116 360 360 5.810%
Plains Road
158 MSMC Arena $5,771,539 02/15/2006 120 115 360 355 5.640%
Marketplace
000 XXXX XX-0 Self $5,629,268 03/31/2006 120 116 360 356 6.010%
Storage
160 MSMC 00-00 00xx Xxxxx $5,491,208 05/31/2006 120 118 360 358 6.590%
000 XXXX Xxxxxxxx Hotel $2,972,854 01/04/2006 120 114 300 294 5.680%
Portfolio -
Hampton Inn (C)
000 XXXX Xxxxxxxx Hotel $2,378,283 01/04/2006 120 114 300 294 5.680%
Portfolio -
Hampton Inn (C)
000 XXXX Xxxxxxxx Xxxxx $5,000,000 02/27/2006 120 115 360 360 5.660%
Office Park
166 MSMC Avon Medical $4,731,094 03/29/2006 120 116 360 356 5.640%
Arts Building
168 MSMC Baymont Inn & $4,558,570 01/19/2006 120 114 300 294 5.710%
Suites
170 MSMC Rite Aid - $4,482,665 03/31/2006 120 116 360 356 5.790%
Mechanicsburg,
PA
175 MSMC Xxxxxxxx Xxxx $4,250,000 04/24/2006 120 117 360 360 5.960%
000 XXXX Xxxxxxxxx Xxxxxx $4,240,000 02/02/2006 60 55 360 360 5.860%
000 XXXX Xxx Xxxxx $4,228,959 02/10/2006 120 115 360 355 5.600%
180 MSMC 86 University $4,184,033 03/08/2006 120 116 360 356 5.850%
Place
182 MSMC Nanticoke $4,059,912 12/22/2005 120 113 300 293 6.090%
Business Park
183 MSMC Prospect $4,017,335 04/12/2006 120 117 360 357 5.280%
Commons
Apartments
143 $45,874 NAP 3 27 89 4
144 $39,701 NAP 6 30 86 4
145 $40,926 NAP 0 24 92 4
146 $39,866 $33,134 4 28 85 7
147 $39,037 NAP 3 27 89 4
148 $37,315 NAP 7 31 85 4
150 $38,068 $31,974 3 27 89 4
151 $37,715 $31,579 4 28 88 4
152 $41,896 NAP 1 25 91 4
155 $38,768 NAP 2 26 90 4
157 $34,069 $28,472 4 28 88 4
158 $33,443 NAP 5 29 87 4
159 $33,911 NAP 4 28 88 4
160 $35,090 NAP 2 59 57 4
161 $18,747 NAP 6 30 83 7
162 $14,997 NAP 6 30 83 7
163 $28,893 $23,911 5 29 84 7
166 $27,389 NAP 4 28 88 4
168 $28,828 NAP 6 30 86 4
170 $26,375 NAP 4 28 88 4
175 $25,372 $21,402 3 27 89 4
176 $25,041 $20,993 5 29 27 4
178 $24,398 NAP 5 12 104 4
180 $24,778 NAP 4 28 88 4
182 $26,642 NAP 7 31 85 4
183 $22,329 NAP 3 27 89 4
143 2.088 143
144 2.088 144
145 2.088 145
146 2.088 146
147 2.088 147
148 2.088 148
150 7.088 150
151 2.088 151
152 2.088 152
155 2.088 155
157 2.088 157
158 2.088 158
159 2.088 159
160 2.088 160
161 2.088 161
162 2.088 162
163 2.088 163
166 2.088 166
168 2.088 168
170 2.088 170
175 12.088 175
176 2.088 176
178 2.088 178
180 2.088 180
182 2.088 182
183 2.088 183
1-7
184 MSMC 21721-21729 $4,000,000 02/15/2006 120 115 360 360 5.490%
Xxxxxxx Xxxxxx
000 XXXX Xxxxxxxx $3,984,960 03/10/2006 120 116 360 356 5.900%
Apartments
186 MSMC Rite Aid - $3,970,356 02/23/2006 120 115 300 295 5.490%
Delmar, MD
187 MSMC Eckerds - $3,880,781 01/19/2006 120 114 360 354 5.430%
Worcester
000 XXXX Xxxxxxxxx - $3,870,543 12/28/2005 120 113 360 353 5.440%
Norfolk
189 MSMC Battlefield $3,850,000 01/05/2006 120 114 360 360 5.680%
Station
191 MSMC Tomra Pacific $1,985,000 04/17/2006 120 117 360 360 6.240%
Industrial
Portfolio -
Fremont (XIII)
192 MSMC Tomra Pacific $1,375,000 04/17/2006 120 117 360 360 6.240%
Industrial
Portfolio -
Rancho Cucamo
(XIII)
193 MSMC Tomra Pacific $ 465,000 04/17/2006 120 117 360 360 6.240%
Industrial
Portfolio -
Sacramento
(XIII)
194 MSMC Eastwood $3,775,000 03/23/2006 120 116 360 360 5.880%
Professional
Center
000 XXXX Xxxx View $3,728,107 03/28/2006 120 116 300 296 5.630%
Medical Office
Bldg.
196 MSMC CVS Ft. Xxxxx $3,631,403 02/14/2006 120 115 360 355 5.470%
000 XXXX Xxxxxxxxx - $3,592,248 05/16/2006 120 118 360 358 5.250%
Xxxxxxx
000 XXXX Xxxxxxxxx - Yuma $3,542,355 05/16/2006 120 118 360 358 5.250%
000 XXXX XxXxxxx Bank $3,493,625 05/08/2006 120 118 360 358 6.020%
Building -
Oviedo
202 MSMC Shops of $3,489,715 04/05/2006 120 117 360 357 5.580%
Waterville
Commons
203 MSMC Hastings/Mr. $3,487,128 03/28/2006 120 116 360 356 6.000%
Xxxxxx Retail
Center
207 MSMC 00 Xxxx Xxxxxx $3,279,509 01/31/2006 120 114 360 354 5.730%
000 XXXX Xxxxxxxx Xxxx $3,255,000 06/07/2006 180 179 360 360 6.630%
Apartments
000 XXXX Xxxxx Xxxx Xxxxx $3,250,000 05/26/2006 120 118 360 360 6.030%
210 MSMC Food World Xxxxx $3,239,916 06/30/2005 120 107 360 347 5.280%
184 $22,686 $18,554 5 29 87 4
185 $23,725 NAP 4 28 88 4
186 $24,540 NAP 5 29 87 4
187 $22,009 NAP 6 30 86 4
188 $21,997 NAP 7 31 85 4
189 $22,297 $18,476 6 30 86 4
191 $12,209 $10,465 3 27 89 4
192 $ 8,457 $ 7,249 3 27 89 4
193 $ 2,860 $ 2,452 3 27 89 4
194 $22,343 $18,754 4 28 88 4
195 $23,320 NAP 4 28 88 4
196 $20,656 NAP 5 29 87 4
198 $19,879 NAP 2 26 90 4
200 $19,603 NAP 2 26 90 4
201 $21,029 NAP 2 26 90 4
202 $20,049 NAP 3 27 89 4
203 $20,984 NAP 4 28 88 4
207 $19,216 NAP 6 30 86 4
208 $20,853 $18,234 1 25 151 4
209 $19,548 $16,558 2 26 81 13
210 $18,212 NAP 13 37 79 4
184 2.088 184
185 2.088 185
186 2.088 186
187 2.088 187
188 2.088 188
189 2.088 189
191 7.088 191
192 7.088 192
193 7.088 193
194 2.088 194
195 2.088 195
196 2.088 196
198 2.088 198
200 2.088 200
201 2.088 201
202 2.088 202
203 2.088 203
207 2.088 207
208 2.088 208
209 2.088 209
210 2.088 210
1-8
000 XXXX Xxxxxxxxx Inn $3,195,940 06/01/2006 120 119 300 299 6.030%
Gastonia
212 MSMC Xxxx X. Xxxxxxx $3,194,529 05/19/2006 60 58 360 358 6.300%
Building
213 MSMC Rite Aid - $3,170,131 01/20/2006 120 114 300 294 5.480%
Xxxxxxxxxx, DE
214 MSMC Pepper's Ferry $3,154,498 05/05/2006 120 118 360 358 6.220%
Place
216 MSMC Roanoke Retail $3,114,568 05/05/2006 120 118 360 358 6.220%
000 XXXX 000 Xxxx Xxxxxx $3,106,389 03/07/2006 120 116 360 356 5.210%
Parkway
000 XXXX Xxxxxxxxx - $3,100,000 12/23/2005 120 113 360 360 5.460%
Glasgow
220 MSMC 103 Executive $3,086,617 03/28/2006 120 116 360 356 5.260%
Drive
221 MSMC Xxxxxxx $3,080,100 01/23/2006 120 114 360 354 5.560%
Apartments
000 XXXX Xxxxxx Xxxxx $3,013,270 03/10/2006 120 116 360 356 5.760%
Crossing
229 MSMC The Shops at $2,925,000 02/17/2006 120 115 360 360 5.493%
Parkway Pavilion
230 MSMC Chesapeake $2,924,899 05/05/2006 120 118 360 358 6.220%
Retail
000 XXXX Xxxxx $2,919,942 05/18/2006 120 118 360 358 6.250%
Plainfield
Restaurants
000 XXXX Xxxxxx Xxxxxx $2,894,490 05/02/2006 120 118 360 358 5.830%
Plaza
000 XXXX Xxxxx Xxxxxxxx $2,894,368 05/05/2006 120 118 360 358 5.730%
Primary Care
236 MSMC 00-00 00xx Xxxxx $2,885,770 02/09/2006 120 115 360 355 5.640%
237 MSMC Sugarloaf $2,864,241 08/15/2005 120 109 360 349 5.240%
Shopping Center
240 MSMC 5860 West $2,792,655 04/24/2006 120 117 360 357 6.070%
Xxxxxxx
Xxxxxxxxx Xxxxx
000 XXXX Xxxxx Shopping $2,782,852 01/30/2006 120 114 360 354 5.800%
Center
000 XXXX Xxxx Xxx $2,750,000 02/28/2006 120 115 360 360 5.580%
Apartments
000 XXXX Xxxxxxxxx $2,716,988 02/09/2006 120 115 360 355 5.770%
Concourse III
245 MSMC 144-154 $2,658,210 01/30/2006 120 114 360 354 5.675%
Xxxxxxxxxx
Xxxxxx
000 XXXX Xxxxxx Xxxx $2,639,521 03/15/2006 120 116 360 356 5.670%
Center
247 MSMC Xxxxx Dell $2,634,929 05/05/2006 120 118 360 358 5.780%
Medical Office
249 MSMC Apopka Retail $2,545,560 05/05/2006 120 118 360 358 6.220%
250 MSMC Xxxxxxx Forum $2,520,487 03/09/2006 120 116 360 356 5.900%
Shopping Center
211 $20,676 NAP 1 25 91 4
212 $19,807 NAP 2 26 30 4
213 $19,613 NAP 6 30 86 4
214 $19,395 NAP 2 26 90 4
216 $19,150 NAP 2 26 90 4
218 $17,152 NAP 4 28 88 4
219 $17,524 $14,301 7 31 88 1
220 $17,138 NAP 4 28 88 4
221 $17,718 NAP 6 30 86 4
222 $17,672 NAP 4 28 88 4
229 $16,594 $13,574 5 29 87 4
230 $17,983 NAP 2 26 90 4
231 $18,010 NAP 2 26 90 4
234 $17,071 NAP 2 26 90 4
235 $16,887 NAP 2 26 90 4
236 $16,722 NAP 5 29 87 4
237 $15,996 NAP 11 35 81 4
240 $16,914 NAP 3 27 89 4
241 $16,429 NAP 6 30 86 4
242 $15,753 $12,965 5 29 87 4
243 $15,966 NAP 5 29 87 4
245 $15,483 NAP 6 30 86 4
246 $15,330 NAP 4 28 88 4
247 $15,457 NAP 2 26 90 4
249 $15,651 NAP 2 26 90 4
250 $15,006 NAP 4 28 88 4
211 2.088 211
212 2.088 212
213 2.088 213
214 2.088 214
216 2.088 216
218 2.088 218
219 2.088 219
220 2.088 220
221 2.088 221
222 2.088 222
229 2.088 229
230 2.088 230
231 2.088 231
234 2.088 234
235 7.088 235
236 2.088 236
237 2.088 237
240 12.088 240
241 2.088 241
242 2.088 242
243 2.088 243
245 2.088 245
246 2.088 246
247 7.088 247
249 2.088 249
250 2.088 250
1-9
252 MSMC The Centre at $2,458,174 02/01/2006 120 115 360 355 5.750%
Greatwood
000 XXXX XxXxxxxx $2,338,596 02/03/2006 120 115 360 355 5.690%
Xxxxxxxx
000 XXXX Xxxxxxxxx Xxxxx $2,283,144 12/15/2005 120 113 360 353 5.590%
000 XXXX Xxxxxxx Xxxx $2,280,000 06/09/2006 120 119 360 360 6.170%
Mobile Home Park
000 XXXX Xxxxx Xxxx Xxxxx $2,158,890 06/30/2005 120 107 300 300 5.170%
263 MSMC Xxxx Church $2,120,000 02/14/2006 120 115 360 360 6.010%
Xxxxxxx
000 XXXX 000 Xxxx Xxxx $2,085,491 12/15/2005 120 113 360 353 5.880%
270 MSMC Original $1,896,781 05/11/2006 120 118 360 358 6.340%
Steakhouse &
Sports
271 MSMC Rite Aid - $1,892,950 03/28/2006 120 116 360 356 5.960%
Meridian, MS
000 XXXX Xxxx Xxxx $1,746,675 05/02/2006 120 118 360 358 5.830%
Crossing
273 MSMC Allegheny $1,127,823 12/15/2005 120 113 300 293 5.540%
Retail
Portfolio -
Advance Auto
Imperial (XV)
274 MSMC Allegheny $ 504,553 12/15/2005 120 113 300 293 5.540%
Retail
Portfolio -
601-611 Lincoln
Avenue (XV)
276 MSMC Litchfield $1,550,000 05/11/2006 120 118 360 360 6.380%
Centre
277 MSMC Bank One Ground $1,539,335 12/09/2005 120 113 360 353 5.900%
Lease
288 MSMC Xxxxxx & Xxxxxx $ 872,228 12/16/2005 120 113 324 317 5.770%
Mini Storage -
6450 Xxxxxxxx
252 $14,414 NAP 5 29 84 7
255 $13,625 NAP 5 29 87 4
257 $13,189 NAP 7 31 85 4
258 $13,920 $11,886 1 25 91 4
262 $12,835 $ 9,430 13 37 79 4
263 $12,724 $10,765 5 29 87 4
264 $12,429 NAP 7 31 85 4
270 $11,810 NAP 2 26 90 4
271 $11,343 NAP 4 28 88 4
272 $10,302 NAP 2 26 90 4
273 $ 7,028 NAP 7 31 85 4
274 $ 3,144 NAP 7 31 85 4
276 $ 9,675 $ 8,355 2 26 90 4
277 $ 9,194 NAP 7 31 85 4
288 $ 5,365 NAP 7 31 85 4
252 2.088 252
255 2.088 255
257 2.088 257
258 2.088 258
262 2.088 262
263 2.088 263
264 2.088 264
270 2.088 270
271 2.088 271
272 2.088 272
273 7.088 273
274 7.088 274
276 2.088 276
277 2.088 277
288 2.088 288
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole loan
and not a participation interest in a mortgage loan. Immediately prior to the
transfer to Purchaser of the Mortgage Loans, Seller had good title to, and was
the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. Upon the
consummation of the transactions contemplated by this Agreement, Seller will
have validly and effectively conveyed to Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance. The sale of the Mortgage Loans
to Purchaser or its designee does not require Seller to obtain any governmental
or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date, in each case, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for (a)
the lien for current real estate taxes and assessments not yet due and payable,
(b) covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record and/or are referred to in the Title Insurance
Policy, (c) exceptions and exclusions specifically referred to in such Title
Insurance Policy, (d) other matters to which like properties are commonly
subject, none of which matters referred to in clauses (b), (c) or (d),
individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt and (e)
if such Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan (the foregoing items (a)
through (e) being herein referred to as the "Permitted Encumbrances"). The
related assignment of such Mortgage executed and delivered in favor of Trustee
is in recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted
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living facility, the Mortgagor's personal property includes all personal
property that a prudent mortgage lender making a similar Mortgage Loan would
deem reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement has been
filed and/or recorded in all places necessary to perfect a valid security
interest in such personal property, to the extent a security interest may be so
created therein, and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such personal
property, any personal property leases applicable to such personal property and
any Permitted Encumbrances. Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below and
any Permitted Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to occupy,
use or possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases not included in a Mortgage
has been executed and delivered in favor of Trustee and is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest in,
to and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been satisfied,
cancelled, rescinded or subordinated in whole or in part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part (except for partial reconveyances of real property that are set
forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since July 31, 2006.
7. Condition of Property; Condemnation. Except with respect to Mortgage Loans
secured primarily by unimproved land: (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property is, to Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan, and (ii) with respect to the
Mortgaged Properties securing the
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Mortgage Loans that were not the subject of an engineering report within 18
months prior to the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
each Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor have
been established) and each Mortgaged Property is free of structural defects, in
each case, that would materially and adversely affect its value as security for
the related Mortgage Loan as of the date hereof. Seller has received no notice
of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage Loan,
(x) all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the Title Policy referred
to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, (y) no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein, and (z) the Mortgaged Property securing each Mortgage
Loan is located on or adjacent to a public road, or has access to an easement
permitting ingress and egress.
8. Title Insurance. Each Mortgaged Property is covered by an American Land Title
Association (or an equivalent form of) lender's title insurance policy or a pro
forma or marked-up title insurance commitment (on which the required premium has
been paid) which evidences such title insurance policy (the "Title Policy") in
the original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of Trustee without the consent
of, or notice to, the insurer. To Seller's knowledge, the insurer issuing such
Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose that were to have been complied with on or before the Closing
Date have been complied with, or any such funds so escrowed have not been
released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder
2-3
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an "Environmental
Report") has been delivered to Purchaser, and Seller has no knowledge
of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. Each Mortgage requires the related Mortgagor to
comply with all applicable federal, state and local environmental laws
and regulations. Where such Environmental Report disclosed the
existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related
to the Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance covering
such condition was obtained or must be maintained until the condition
is remediated or (iii) the related Mortgagor was required either to
provide additional security that was deemed to be sufficient by the
originator in light of the circumstances and/or to establish an
operations and maintenance plan. In connection with the origination of
each Mortgage Loan, each environmental consultant has represented in
such Environmental Report or in a supplement letter that the
environmental assessment of the applicable Mortgaged Property was
conducted utilizing generally accepted Phase I industry standards
using the American Society for Testing and Materials (ASTM) standards.
Each Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C (the
"Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on Schedule A
to this Exhibit 2, with respect to each Schedule C Loan, (i) to
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering report
was prepared with respect to lead based paint ("LBP") and radon gas
("RG") at each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing materials ("ACM") at
each related Mortgaged Property and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG
2-4
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage Loan
or provide additional security, or establish with the lender a reserve
from loan proceeds, in an amount deemed to be sufficient by Seller for
the remediation of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iii) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge
of any material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of LBP, ACM
or RG) that was not disclosed to the Policy Issuer in one or more of
the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through
the maturity of the policy's term and the term of such policy extends
at least five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely
affected or (2) under applicable federal, state or local law, (a) such
Hazardous Material could be required to be eliminated at a cost
materially and adversely affecting the value of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished
or transferred or (b) the presence of such Hazardous Material could
(upon action by the appropriate governmental authorities) subject the
owner of such Mortgaged Property, or the holders of a security
interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially
and adversely affecting the value of the Mortgaged Property, and (ii)
such Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not have
a material adverse effect on the value of such Mortgaged Property and
neither Seller nor, to Seller's knowledge, the related Mortgagor or
any current tenant thereon, has received any notice of violation or
potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control
2-5
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of Leases and
other agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor or any guarantor of any non-recourse
exceptions and environmental liability is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the improvements located at the
Mortgaged Property, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and the policy contains no provisions for a deduction for depreciation; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to twelve months of operations of the Mortgaged Property estimated as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgaged Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards and the Federal Emergency Management Agency
requires flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by commercial
mortgage lenders for properties of similar types and in any event not less than
$1 million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan. For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone,
2-6
either: (i) a seismic report which indicated a PML of less than 20% was
prepared, based on a 450 or 475-year average return period with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered delinquent or unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate in
real estate or, if the related Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease" which term shall include any related estoppel letter
or lender protection agreement between Seller and related lessor), by the
related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such Ground
Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required for assignment to Purchaser, it has been obtained prior to
the Closing Date) and is further assignable by Purchaser and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, Seller
has received no notice that an event of default has occurred
thereunder, and, to Seller's knowledge, there exists no
2-7
condition that, but for the passage of time or the giving of notice,
or both, would result in an event of default under the terms of such
Ground Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease to
give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given under
such Ground Lease is effective against the holder of the Mortgage
unless a copy of such notice has been delivered to such holder and
the lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the economic
terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied
either (A) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property
in the lending area where the Mortgaged Property is located; and
such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in
a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each Mortgage
Loan that are, as of the Closing Date, required to be deposited or paid have
been so deposited or paid.
2-8
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related Mortgagor
at origination did not exceed the non-contingent principal amount of the
Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest in
real property having a fair market value (i) at the date the Mortgage Loan was
originated, at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or is exempt
from) all applicable usury laws and any other applicable material laws in effect
at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence, no
Mortgage Note or Mortgage requires the mortgagee to release all or any material
portion of the related Mortgaged Property that was included in the appraisal for
such Mortgaged Property, and/or generates income from the lien of the related
Mortgage except upon payment in full of all
2-9
amounts due under the related Mortgage Loan or in connection with the defeasance
provisions of the related Note and Mortgage. The Mortgages relating to those
Mortgage Loans identified on Schedule A hereto require the mortgagee to grant
releases of portions of the related Mortgaged Properties upon (a) the
satisfaction of certain legal and underwriting requirements and/or (b) the
payment of a predetermined or objectively determinable release price and
prepayment consideration in connection therewith. Except as described in the
first sentence hereof and for those Mortgage Loans identified on Schedule A, no
Mortgage Loan permits the full or partial release or substitution of collateral
unless the mortgagee or servicer can require the Borrower to provide an opinion
of tax counsel to the effect that such release or substitution of collateral (a)
would not constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such
Mortgage Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code. The loan documents require the related Mortgagor to
bear the reasonable cost of such opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or shared appreciation feature or
provides for negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the Anticipated Repayment Date)
or for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property. Neither Seller nor any affiliate
thereof has any obligation to make a capital contribution to the Mortgagor under
the Mortgage Loan or otherwise.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller elsewhere in this Exhibit 2 or the exceptions listed in Schedule A
attached hereto.
28. Inspections. Seller (or if Seller is not the originator, the originator of
the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with
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the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien (other than a Permitted Encumbrance) junior to the
lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are no
actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence that it
customarily performs in the origination of comparable mortgage loans, as of the
date of origination of each Mortgage Loan or as of the date of the sale of the
related Mortgage Loan by Seller hereunder, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED LIVING
FACILITY].
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not secured
by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational
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documents further provide, or which entity represented in the related Mortgage
Loan documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such Mortgaged
Property or Properties, or any indebtedness other than as permitted by the
related Mortgage(s) or the other related Mortgage Loan documents, that it has
its own books and records and accounts separate and apart from any other person
(other than a Mortgagor for a Mortgage Loan that is cross-collateralized and
cross-defaulted with the related Mortgage Loan), and that it holds itself out as
a legal entity, separate and apart from any other person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage Loan
provide that such Mortgage Loan constitutes either (a) the recourse obligations
of at least one natural person or (b) the non-recourse obligations of the
related Mortgagor, provided that at least one natural person (and the Mortgagor
if the Mortgagor is not a natural person) is liable to the holder of the
Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents provide
that the related borrower is responsible for the payment of all reasonable costs
and expenses of the lender incurred in connection with the defeasance of such
Mortgage Loan and the release of the related Mortgaged Property, and the
borrower is required to pay all reasonable costs and expenses of the lender
associated with the approval of an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until the
date that is at least two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Authorized to do Business. To the extent required under applicable law as of
the date of origination, and necessary for the enforceability or collectability
of the Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
42. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
43. Terrorism Insurance. With respect to each Mortgage Loan that has a principal
balance as of the Cut-off Date that is greater than or equal to $17,500,000, the
related all risk insurance
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policy and business interruption policy do not specifically exclude Acts of
Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, from
coverage, or if such coverage is excluded, is covered by a separate terrorism
insurance policy. With respect to each other Mortgage Loan, the related all risk
insurance policy and business interruption policy did not as of the date of
origination of the Mortgage Loan, and, to Seller's knowledge, do not, as of the
date hereof, specifically exclude Acts of Terrorism from coverage, or if such
coverage is excluded, it is covered by a separate terrorism insurance policy.
With respect to each of the Mortgage Loans, the related Mortgage Loan documents
do not waive or prohibit the mortgagee from requiring coverage for acts of
terrorism or damages related thereto, except to the extent that any right to
require such coverage may be limited by commercially reasonable availability, or
as otherwise indicated on Schedule A.
44. Operating Statements and Rent Rolls. In the case of each Mortgage Loan, the
related Mortgage Loan documents require the related Mortgagor, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except in
certain cases if the Mortgage Loan has an outstanding principal balance of less
than or equal to $3,500,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases, the Mortgage Loan
documents require the Mortgagor, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Mortgagor
annually), and such other information as may be required therein.
45. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a) (but without regard to the rule in Treasury Regulation Sections
1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as a
qualified mortgage, or any substantially similar provision).
46. No Fraud in Origination. A court of competent jurisdiction will not find, in
a final non-appealable judgment, that an employee of Seller actively
participated with the Borrower in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Borrower is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan, and such appraisal satisfied the
guidelines in Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as in effect on the date such Mortgage Loan was
originated.
48. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 48 are made solely for the
purpose of determining whether the Mortgaged Property, if acquired by the Trust,
would qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code, and may not be relied upon or used for any other purpose. Such
representations shall not be construed as a guarantee to any degree that
defaults or losses will not occur.
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49. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots containing no other property, or is subject to an endorsement
under the related Title Policy insuring same, or an application for the creation
of separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such tax lots shall be effective for the
next tax year.
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Schedule A to Exhibit 2
Exceptions to Representations and Warranties
2006-HQ9 - Xxxxxx Xxxxxxx Mortgage Capital Inc.
Schedule A: Representation Exceptions
REP. 2. Whole Loan; Ownership of Mortgage Loans,
REP. 5. Assignment of Leases and Rents,
REP. 24. Cross-collateralization, and
REP. 30. Junior Lien.
Mortgage Loan No. __, 120 Broadway, and Mortgage Loan No. ___, Ritz Carlton
Portfolio, are each secured by a Mortgage that also secures a subordinate loan
other than one or more other Mortgage Loans. Mortgage Loan No. ___, Ritz Carlton
Portfolio and Mortgage Loan No. ___, Cherry Creek, are each secured by a
Mortgage that also secures a pari passu loan other than one or more other
Mortgage Loans. In the case of each of these loans other than Cherry Creek, the
relevant Mortgage Loan is serviced pursuant to a pooling and servicing agreement
other than the HQ9 Pooling and Servicing Agreement, and ownership of the loan
documents are nominally held pursuant to that pooling and servicing agreement.
The related loans are described in the Prospectus Supplement.
REP. 4. Lien, and
REP. 8. Title Insurance.
With respect to Mortgage Loan No. ___, Bank One Ground Lease, the Mortgaged
Property was recently subdivided and does not yet have its own separate tax
parcel number (PIN). Pending the issuance of the PIN, the collateral for the
Mortgage Loan includes a second position mortgage by an affiliate of the
borrower in favor of the lender encumbering land adjacent to the Mortgaged
Property.
REP. 14. Insurance.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, the Mortgage
requires that insurance proceeds be used either to restore the damaged property
or applied to the debt, subject to the terms of the condominium documents and/or
the ground leases that affect such property. Accordingly, the condominium
documents for the Xxxx-Xxxxxxx, Central Park hotel provide that if 75% or more
of the property is destroyed or rendered uninhabitable and owners of 75% or more
of the applicable interests in the common elements do not agree to restore the
property, then the property shall be subject to an action for partition and the
insurance proceeds and proceeds from any sale will be held in a fund to be
distributed to each unit owner in proportion to each unit's common area interest
after the repayment of all mortgages on such units. The condominium documents
provide that the borrower (as the hotel unit owner) shall have the right of
first refusal to acquire the residential units if 75% of the unit owners do not
elect to restore.
In the event of a casualty to the Xxxx-Xxxxxxx, Central Park hotel that
causes damage to the extent that the improvements cannot, under applicable
zoning laws, be restored to a size and/or configuration comparable to the size
and/or configuration of such improvements immediately prior to such casualty,
the Central Park ground lease provides that the ground lessor may require the
borrower (i) to purchase the related fee interests for a purchase price equal to
$82,500,000 (increasing by $1,000,000 each year, up to a maximum purchase price
of $87,500,000) or (ii) to restore the improvements consistent with the type and
size improvements that can be constructed under applicable zoning laws. In the
event the borrower is required to purchase the fee interest, the ground lease
requires that a portion of the insurance proceeds from such casualty be applied
by the borrower to such purchase price. The Mortgage requires the borrower to
thereafter repay to the lender the lesser of (i) the amount of insurance
proceeds applied to such purchase price or (ii) the amount by which the
allocated loan amount for the Central Park hotel exceeds 70% of the fair market
value of such property as of the purchase of such fee interests by the borrower.
Such obligation is guaranteed by Millennium Partners LLC, the recourse guarantor
for the loan. As of January 1, 2006, the appraised value of the fee interests
related to the Xxxx-Xxxxxxx, Central Park was $110,000,000.
With respect to Mortgage Loan No. __- __, G&L Portfolio, provided no event of
default is continuing under the Mortgage Loan, the lender must release to the
borrower any excess proceeds after the restoration of the Mortgaged Property.
With respect to Mortgage Loan No. __, Windsor Commons, the lender is not named
as a loss payee with respect to the Giant Foods space.
REP. 17. Leasehold Estate.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, the following
exceptions apply:
Rep 17(ii): The Xxxx-Xxxxxxx, Central Park ground lease is subject to the
condominium documents affecting the Xxxx-Xxxxxxx, Central Park hotel. Also, the
Xxxx-Xxxxxxx, Battery Park ground lease is subject to the condominium documents
affecting the Xxxx-Xxxxxxx, Battery Park hotel and the Master Lease, Master
Sublease and Hotel Unit Lease (as defined in the loan documents).
Rep 17(iii): The Xxxx-Xxxxxxx, Battery Park ground lease provides that the
consent of the ground lessor is not required in connection with the acquisition
of the borrower's interest in the hotel unit and the Hotel Unit Sublease by the
lender, its nominee or by a Qualified Developer, through the foreclosure of the
mortgage or through a deed or instrument of transfer delivered in lieu of such
foreclosure. Any lender who has succeeded to the lessee's interest in the hotel
unit and the borrower's interest under the Hotel Unit Sublease shall have the
right to sell, transfer or assign its interest in the hotel unit and the Hotel
Unit Sublease to a Qualified Developer. A "Qualified Developer" means a person
that possesses the experience, qualifications and financial resources necessary
for the proper performance of the lessee's obligations under the Hotel Unit
Sublease and who is otherwise approved by the ground lessor, which approval
shall not be unreasonably withheld or delayed.
Rep 17(viii): The condominium documents for the Xxxx-Xxxxxxx, Central Park
hotel provide that if 75% or more of the property is destroyed or rendered
uninhabitable, by condemnation or casualty, and owners of 75% or more of the
applicable interests in the common elements do not agree to restore the
property, then the property shall be subject to an action for partition and the
net condemnation award, insurance proceeds and proceeds from any sale will be
held in a fund to be distributed to each unit owner in proportion to each unit's
common area interest after the repayment of all mortgages on such units. The
borrower (as the hotel unit owner) shall have the right of first refusal to
acquire the residential units if 75% of the unit owners do not elect to restore.
In the event of a casualty to the Xxxx-Xxxxxxx, Central Park hotel that
causes damage to the extent that the improvements cannot, under applicable
zoning laws, be restored to a size and/or configuration comparable to the size
and/or configuration of such improvements immediately prior to such casualty,
the Central Park ground lease provides that the ground lessor may require the
borrower (i) to purchase the related fee interests for a purchase price equal to
$82,500,000 (increasing by $1,000,000 each year, up to a maximum purchase price
of $87,500,000) or (ii) to restore the improvements consistent with the type and
size improvements that can be constructed under applicable zoning laws. In the
event the borrower is required to purchase the fee interest, the ground lease
requires that a portion of the insurance proceeds from such casualty be applied
by the borrower to such purchase price. The Mortgage requires the borrower to
thereafter repay to the lender the lesser of (i) the amount of insurance
proceeds applied to such purchase price or (ii) the amount by which the
allocated loan amount for the Central Park hotel exceeds 70% of the fair market
value of such property as of the purchase of such fee interests by the borrower.
Such obligation is guaranteed by Millennium Partners LLC, the recourse guarantor
for the loan. As of January 1, 2006, the appraised value of the fee interests
related to the Xxxx-Xxxxxxx, Central Park was $110,000,000.
In the event of a condemnation to the Xxxx-Xxxxxxx, Central Park hotel, the
ground lease provides that before any payments from a casualty are made to the
lender, the lessor is to be paid an amount equal to the Casualty Purchase Price.
In the event of a condemnation to the Xxxx-Xxxxxxx, Battery Park hotel, the
Hotel Unit Sublease provides that before any payments are made to the lender,
the lessor is to be paid an amount attributable to the value of the land taken,
and the value of lessor's civic facilities and other site improvements made by
lessor.
REP. 25. Release of Mortgaged Property.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, and after the
second anniversary of the REMIC "start up" day, any hotel in the Xxxx-Xxxxxxx
Portfolio property (other than the Xxxx-Xxxxxxx, Central Park hotel) may be
released through a partial defeasance of the Loan in an amount equal to 125% of
the allocated loan amount of the property to be released provided, among other
things, (a) no event of default is then occurring, (b) the debt service coverage
ratio immediately following the release must be at least equal to the debt
service coverage ratio immediately prior to such release and (c) the borrower
repays the amount, if any, of any prior advances made under the Marriott
Guarantee as may be required under the Marriott Guarantee in connection with the
sale of such property.
The borrower may also obtain a partial release with respect to (i) prior to
the second anniversary of the REMIC "start up" day, the Xxxx-Xxxxxxx, Boston and
(ii) at any time during the loan term, certain rooms within the property that
the borrower may elect to convert to residential ownership ("Conversion Rooms")
provided that, among other things, (A) (1) with respect to the Xxxx-Xxxxxxx,
Boston, the borrower prepays the loan in an amount equal to the allocated loan
amount with respect to such property and (2) with respect to any Conversion
Rooms, the borrower prepays the loan in an amount equal to 115% of the amount by
which the appraised value of the applicable hotel is projected to be reduced by
the release of such Conversion Rooms (such reduction to be in no event less than
a pro rata amount of such hotel's allocated loan amount based on the number of
Conversion Room as compared to the total number of rooms in such hotel), (B) the
borrower pays a yield maintenance premium with respect to the amount described
in the preceding clause (A), (C) the debt service coverage ratio immediately
following the release must be at least equal to the debt service coverage ratio
immediately prior to such release, (D) in no event shall the aggregate amount
prepaid with respect to Conversion Rooms exceed $75,000,000, (E) in no event
shall Conversion Rooms consist of more than 50% of the rooms at the applicable
hotel or be located at the Xxxx-Xxxxxxx, Central Park and (F) any Conversion
Rooms shall consist of one or more units in a validly created condominium regime
for the applicable property that are legally separate from the remaining
Xxxx-Xxxxxxx Portfolio property.
Mortgage Loan No. ___, Millennium Retail Portfolio, permits the borrower to
partially defease the loan and to obtain the release of certain portions of the
collateral, provided certain conditions are met, including: (i) delivery of
defeasance collateral in the amount of 125% of the allocated loan amount, in the
case of the DC parking garage, the Georgetown parking garage and/or the San
Francisco leased property, and 100% of the allocated loan amount, in the case of
the aggregate San Francisco property, (ii) the DSCR for the remaining property
will be no lower after the defeasance and the LTV will be no greater than they
were prior to release, and (iii) delivery of a rating agency confirmation of no
withdrawal or downgrade of the ratings of the REMIC securities on account of the
partial defeasance and certification that the defeasance collateral will provide
sufficient payments. If the property to be released is the DC or Georgetown
parking lot, the borrower must make appropriate arrangements so that the
remaining properties have access to parking. In addition, with respect to the
San Francisco property, the borrower may at any time convert floors 5 and 6 of
000 Xxxxxx Xxxxxx to a condominium regime and obtain the release thereof,
provided, among other things, that the new condominium property is transferred
to a new owner and the borrower provides appropriate assurances that the release
of floors 5 and 6 will not negatively impact the remaining property.
Mortgage Loan No. ___, Central PA Retail Portfolio, after the lockout period,
permits the borrower to partially defease the loan and to obtain the release of
certain portions of the collateral, provided certain conditions are met,
including: (a) the borrower deposits defeasance collateral equal to 100% of the
allocated loan amount of the released property, (b) the LTV of the remaining
portfolio and any individual loan on a stand-alone basis is equal to or less
than 75%, (c) the DSCR on the remaining portfolio and any individual loan on a
stand-alone basis is equal to or greater than 1.25x, and (d) the borrower pays a
release premium of 20% of the outstanding loan balance of the property being
defeased, which will be applied on a pro-rata basis across each of the remaining
notes. Such application of the release premium does not constitute a
prepayment requiring a prepayment premium; the remaining borrowers will continue
to make their monthly P&I payments in accordance with their respective notes.
Mortgage Loan No. ___ - ___, G&L Portfolio, permits the borrower to partially
prepay (including a make whole premium) or partially defease the loan at any
time that the borrower is permitted to defease the loan as a whole, provided
certain conditions are met, including: (i) up to but no more than three
individual properties may be defeased or released, (ii) the DSCR of the
remaining properties must be 1.20x or greater, (iii) the LTV of the remaining
properties must not exceed 76% and (iv) the borrower must deposit defeasance
collateral equal to 100% of the allocated loan amount of the released property.
In addition, the borrower has the right to obtain a partial release of one or
more Mortgaged Properties by substituting, in lieu thereof and as collateral for
the Mortgage Loan, other real property of similar value, kind and quality as the
proposed release parcel(s), as reasonably determined by lender applying the
standards of a prudent institutional mortgage loan lender.
Mortgage Loan No. ___, Page Plaza, permits the borrower to partially defease the
loan and to obtain the release of certain portions of the collateral, provided
certain conditions are met, including: (i) the DSCR is not less than the greater
of 1.20x and the DSCR prior to the release, (ii) the LTV is not greater than the
lesser of 80% and the LTV prior to the release based on an updated appraisal at
the time of the release, and (iii) the borrower pays an amount sufficient to pay
principal and interest in amount equal to 110% of the allocated loan amount for
the property being released subject to yield maintenance. The allocated loan
amounts are as follows:
Parcel 9 - $5,100,000 (45.5%)
Parcel 10 - $2,750,000 (24.5%)
Parcel 11- $3,350,000 (30.0%).
Mortgage Loan No. ___, Xxxxxx Portfolio, after the lockout period, permits the
borrower to partially defease the loan and to obtain the release of certain
portions of the collateral, provided certain conditions are met, including: (a)
the borrower deposits defeasance collateral equal to 100% of the allocated loan
amount of the released property, (b) the LTV of the remaining portfolio and any
individual loan on a stand-alone basis is equal to or less than 75%, (c) the
DSCR on the remaining portfolio and any individual loan on a stand-alone basis
is equal to or greater than 1.25x, and (d) the borrower pays a release premium
of 20% of the outstanding loan balance of the property being defeased, which
will be applied on a pro-rata basis across each of the remaining notes. Such
application of the release premium does not constitute a prepayment requiring a
prepayment premium; the remaining borrowers will continue to make their monthly
P&I payments in accordance with their respective notes.
Mortgage Loan No. ___, Xxx Arbor Apartments Portfolio, after the lockout period,
permits the borrower to partially defease the loan and to obtain the release of
certain portions of the collateral, provided certain conditions are met,
including: (a) the borrower deposits defeasance collateral equal to 125% of the
allocated loan amount of the released property, (b) the DSCR of the remaining
properties is equal or greater than 1.20x, and (c) the LTV ratio of the
remaining properties is equal to or less than 75%.
Mortgage Loan No. ___, Tomra Pacific Industrial Portfolio, after the lockout
period, permits the borrower to partially defease the loan and to obtain the
release of certain portions of the collateral, provided certain conditions are
met, including: (a) the borrower deposits defeasance collateral equal to 125% of
the allocated loan amount of the released property, (b) the DSCR of the
remaining properties is equal to or greater than 1.20x, and (c) the LTV ratio of
the remaining properties is equal to or less than 75%.
Each of the following Mortgage Loans permits the release of unimproved parcels
that are part of the Mortgaged Property, without prepayment or defeasance, under
certain conditions:
No. ___, Voice of America Phase II Portfolio: Borrower may seek the release
of a portion of the Property consisting of approximately .96 acres and with
frontage on Xxx Road and identified as proposed outlot 22. The release
conditions include: (i) ensuring the release lot and the balance of the
Property comply with all zoning laws and the applicable O&M Agreement
entered with Target and other adjacent property owners, (ii) both the
release lot and the balance of the Property will each be assessed as a
separate tax parcel, (iii) endorsements to Lender's title policy, and (iv)
rating agency approval. No appraised value or cash flow is associated with
the release parcel.
No. ___, Nanticoke Business Park: Borrower may seek the release of an
outparcel (9.6 acres), upon satisfaction of certain conditions. The release
conditions include: (a) the DSCR of the remaining property is not less than
1.25x (based on a 25-year amortization schedule and assuming a 10.09%
interest rate), and (b) the LTV of the remaining property is not more than
65%.
No. ___, Weberstown Mall: Borrower may seek partial releases for the
portions of the collateral within the designated "PBA Boundary" (which area
is currently a portion of the land that is ground leased to Sears). The
release conditions include: (i) Sears agrees to release such land from its
ground lease; (ii) after the release, the remaining collateral property
shall remain in compliance with all legal requirements with respect to
zoning, parking, etc.; and (iii) the construction of any improvements for
retail stores and parking facilities within the released parcel shall be
conditioned upon the collateral property remaining in compliance with all
legal requirements with respect to zoning, parking, etc. and requirements
under any leases or operating agreements affecting the collateral property.
No. ___, Mt. Hood Professional Plaza: Borrower may seek the partial release
of a 26,215 square foot portion of vacant land at the property, upon
satisfaction of certain conditions.
No. ___, Coronado Point Office Park: Borrower may seek the partial release
of a 6,789 square foot portion of vacant land at the property, upon
satisfaction of certain conditions.
REP. 29. Local Law Compliance.
With respect to Mortgage Loan No. ___, Central PA Retail Portfolio, the
Mortgaged Property does not have the required certificate of occupancy. The
related guaranty of recourse obligations includes any liability or obligation
arising out of violations of local law.
With respect to Mortgage Loan No. __ - ___, G&L Portfolio, portions of the
Mortgaged Property may constitute legal nonconforming uses, on account of excess
building height, floor area ratios and parking space deficiencies. The loan
documents require the borrower to ordinance and law coverage.
With respect to Mortgage Loan No. ____, Revere Marketplace, and Mortgage Loan
No. _____, Xxx Arbor Apartments - Xxxxxxxx, the Mortgaged Property does not have
the required certificate of occupancy. The related guaranty of recourse
obligations includes any liability or obligation arising out of failure to
obtain certificates of occupancy.
REP. 30. Junior Liens.
With respect to Mortgage Loan No. ___, Xxxx-Xxxxxxx Portfolio, each hotel is
encumbered by a subordinate mortgage from the borrower in favor of Marriott
securing the Marriott Guarantee, as defined in the relevant loan documents.
With respect to Mortgage Loan No. ___, Millennium Retail Portfolio, the borrower
may without the lender's consent xxxxx x xxxx or otherwise encumber the facade
of 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX in favor of any governmental authority
or non-profit entity for purposes of gaining historical preservation tax credits
or deductions.
REP 36. Due on Sale (encumbrance).
Each of the following Mortgage Loans permit the parent of the borrower to obtain
future mezzanine financing, provided certain conditions are met:
With respect to Mortgage Loan No. [_], 000 Xxxxxxxx, the borrower has the
right in the future to obtain mezzanine financing provided that, among
other conditions, (i) the combined LTV does not exceed 85% and (ii) the
combined DSCR is not less than 1.20x.
With respect to Mortgage Loan Nos. [_], G&L Portfolio, the borrower has the
right in the future to obtain mezzanine financing provided that, among
other conditions, (i) the combined LTV does not exceed 80% and (ii) the
combined DSCR is not less than 1.10x.
With respect to Mortgage Loan No. [_], 000 Xxxxxxx Xxxxxx XX, the borrower
has the right in the future to obtain mezzanine financing provided that,
among other conditions, (i) the combined LTV does not exceed 85% and (ii)
the combined DSCR is not less than 1.30x.
With respect to Mortgage Loan No. [_], Coronado Center, the borrower has
the right in the future to obtain mezzanine financing provided that, among
other conditions, (i) the combined LTV does not exceed 85% and (ii) the
combined DSCR is not less than 1.20x.
With respect to Mortgage Loan Nos. [_], Central PA Retail Portfolio, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 75% and
(ii) the combined DSCR is not less than 1.25x.
With respect to Mortgage Loan No. [_], 000 Xxxxxxx Xxxxxx XX, the borrower
has the right in the future to obtain mezzanine financing provided that,
among other conditions, (i) the combined LTV does not exceed 85% and (ii)
the combined DSCR is not less than 1.25x.
With respect to Mortgage Loan No. [_], Washington Green Shopping Center,
the borrower has the right in the future to obtain mezzanine financing
provided that, among other conditions, (i) the combined LTV does not exceed
80% and (ii) the combined DSCR is not less than 1.20x.
With respect to Mortgage Loan No. [_], Xxxxxx Furniture & Interiors - Ft.
Xxxxx, the borrower has the right in the future to obtain mezzanine
financing provided that, among other conditions, (i) the combined LTV does
not exceed 85% and (ii) the combined DSCR is not less than 1.15x.
With respect to Mortgage Loan No. [_], West Oaks Plaza, the borrower has
the right in the future to obtain unsecured subordinate financing provided
that, among other conditions, (i) the combined LTV does not exceed 80%,
(ii) the combined DSCR is not less than 1.10x, (iii) the note shall be
payable out of cash flow only, and (iv) the lender shall be a financial
institution with a minimum net worth of $250,000,000 and shall not assign
the note at any time until the mortgage loan is paid in full.
With respect to Mortgage Loan No. [_], Homewood Suites - Pinehurst, NC, the
borrower has the right in the future to obtain mezzanine financing provided
that, among other conditions, (i) the combined LTV does not exceed 80% and
(ii) the combined DSCR is not less than 1.35x.
With respect to Mortgage Loan No. [_], Comfort Suites, Atlanta, the
borrower has the right in the future upon a sale of the property to obtain
mezzanine financing provided that, among other conditions, (i) the combined
LTV does not exceed 75%, (ii) the combined DSCR is not less than 1.25x, and
(iii) the financing amount does not exceed 70% of the property sales price.
With respect to Mortgage Loan No. [_], US-1 Self Storage, the borrower has
the right after April 1, 2008 to obtain mezzanine financing provided that,
among other conditions, (i) the combined LTV does not exceed 80% and (ii)
the combined DSCR is not less than 1.20x.
With respect to Mortgage Loan No. [_], Starcrest Center, the borrower has
the right in the future to obtain mezzanine financing provided that, among
other conditions, (i) the combined LTV does not exceed 80% (ii) the
combined DSCR is not less than 1.20x., and (iii) the combined DSCR based on
the rating agency constant is not less than 0.80x.
With respect to Mortgage Loan No. [_], 00 Xxxx Xxxxxx, the borrower has the
right after the fifth year of the loan term to obtain mezzanine financing
provided that, among other conditions, (i) the combined LTV does not exceed
75%, (ii) the combined DSCR is not less than 1.25x, and (iii) the DSCR
based on a 10.09% constant is not less than 0.85x.
With respect to Mortgage Loan No. [_], Pleasant Hill Apartments, the
borrower has the right in the future to obtain unsecured subordinate
financing provided that, among other conditions, (i) the combined LTV does
not exceed 85%, (ii) the combined DSCR is not less than 1.10x, (iii) the
subordinate financing must be secured by an interest in the borrower
subject to a cap of $1,800,000.
With respect to Mortgage Loan No. [_], Fairfield Inn Gastonia, the borrower
has the right in the future upon the sale of the property to obtain
mezzanine financing provided that, among other conditions, (i) the combined
LTV does not exceed 75%, (ii) the combined DSCR is not less than 1.25x, and
(iii) the financing amount does not exceed 70% of the property sales price.
With respect to Mortgage Loan No. [_], Original Steakhouse & Sports, the
borrower has the right after the second year of the loan term to obtain
mezzanine financing provided that, among other conditions, (i) the combined
LTV does not exceed 80% and (ii) the combined DSCR is not less than 1.20x.
Each of the following Mortgage Loans currently has mezzanine financing in place:
No. ___, 000 Xxxxxxxx; and
No. ___, 00 Xxxxx Xxxxxx.
REP. 38. Non-Recourse Exceptions.
Each of the following Mortgage Loans is not recourse to a natural person, nor is
any natural person liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the borrower,
misappropriation of rents, insurance proceeds or condemnation awards, or
breaches of the environmental covenants in the Mortgage Loan documents:
No. ___, Cherry Creek;
Nos. ___-___, G&L Portfolio;
Nos. ___-___, Millennium Retail Portfolio;
No. ___, Weberstown Mall;
No. ___, Xxxx-Xxxxxxx Portfolio;
No. ___, GE Capital FFC Office Building;
No. ___, Xxxxxx Plaza Shopping Center;
No. ___, Mesa View Medical Office Bldg.;
No. ___, Shops of Waterville Commons;
No. ___, Pleasant Hill Apartments;
No. ___, Fairfield Inn Gastonia; and
No. ___, Walgreens - Glasgow.
REP. 43. Terrorism Insurance.
With respect to Mortgage Loan No. ___, 00 Xxxxx Xx., the borrower is required to
maintain terrorism insurance only to the extent obtainable for a maximum annual
premium equal to $200,000, inflation adjusted.
With respect to Mortgage Loan No. ___, Original Steakhouse, terrorism insurance
is not required as long as the loan balance is not greater than the land value.
With respect to Mortgage Loan No. ___, Bank One Ground Lease, terrorism
insurance is not required, since the collateral primarily consists of an
interest in land, only.
Schedule B to Exhibit 2
List of Mortgagors that are Third-Party Beneficiaries Under Section
5.5
MSCI 2006-HQ9: SCHEDULE B
SECTION 5(B) LIST (CROSSED LOANS)
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- ---------------------------------- ---------- ------------------------- -----------------------------
89 MSMC Central PA Retail Portfolio - East $5,047,916 Eastside Plaza, X.X. Xxxxxx Boul, Xxxx Xxxx,
Side Shopping Center Xxxxxxx Xxxx
90 MSMC Central PA Retail Portfolio - $4,703,740 Xxxxxx Center, X.X. Xxxxxx Boul, Xxxx Xxxx,
Village Center at Xxxxxx Xxxxxxx Xxxx
91 MSMC Central PA Retail Portfolio - $3,940,567 Lords Valley Center, X.X. Xxxxxx Boul, Xxxx Xxxx,
Village Center at Lords Valley Xxxxxxx Xxxx
92 MSMC Central PA Retail Portfolio - $2,773,361 Duryea Center, X.X. Xxxxxx Boul, Xxxx Xxxx,
Village Center at Duryea Xxxxxxx Xxxx
93 MSMC Central PA Retail Portfolio - $1,915,415 2101 Shopping Xxxxxx Boul, Xxxx Xxxx,
Union Boulevard Shopping Plaza Center, L.P. Xxxxxxx Xxxx
111 MSMC Xxxxxx Portfolio - Xxxxxx Village $3,445,000 Xxxxxx Village I, LLC Xxxxxx X. Xxxxxx
112 MSMC Xxxxxx Portfolio - Southbrook $2,210,000 Southbrook I, LLC Xxxxxx X. Xxxxxx
Apartments
113 MSMC Xxxxxx Portfolio - Meadowbrook $2,010,000 Meadowbrook I, LLC Xxxxxx X. Xxxxxx
Apartments
114 MSMC Xxxxxx Portfolio - Sheboygan $1,872,000 Sheboygan Regency Xxxxxx X. Xxxxxx
Regency House House I, LLC
115 MSMC Xxxxxx Portfolio - Janesville
Regency House $1,680,000 Janesville R.H., L.L.C. Xxxxxx X. Xxxxxx
000 XXXX Xxxxxxxx Hotel Portfolio - $2,972,854 MST Hospitality, LLC Xxxxxx Xxxxxx
Hampton Inn
162 MSMC Richmond Hotel Portfolio - $2,378,283 Paras Hospitality, LLC Xxxxxx Xxxxxx; Xxxxxxx Xxxxxx
Sleep Inn
Schedule C to Exhibit 2
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
None
3-1
EXHIBIT 3
PRICING FORMULATION
MSCI 2006-HQ9
Total Bond Proceeds $2,592,379,135
Less Expenses $ 4,395,862
--------------
Net Proceeds $2,596,774,997
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $ 824,934,902
Allocable Expense Amount for LaSalle Loans $ 1,380,858
--------------
Purchase Price of LaSalle Loans $ 826,315,760
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,545,840,219
Allocable Expense Amount for MS Loans $ 2,643,230
--------------
Purchase Price of MS Loans $1,548,483,449
Less Purchase Price of PCF II Loans
Discounted Value of PCF II Loans $ 221,604,014
Allocable Expense Amount for PCF II Loans $ 371,774
--------------
Purchase Price of PCF II Loans $ 221,975,788
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of August 8, 2006 (the "Mortgage Loan Purchase Agreement"),
between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3 to
the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this __ day of August, 2006.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
LIMITED POWER OF ATTORNEY
TO U.S. BANK NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-HQ9
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of August ___, 2006 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), MSMC is selling certain multifamily and commercial mortgage loans
(the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated
as of August 1, 2006 (the "Pooling and Servicing Agreement"), between the
Depositor, Xxxxx Fargo Bank National Association, as Master Servicer, X.X.
Xxxxxx Company, Inc. ("JER") as Special Servicer, LaSalle Bank National
Association, as Paying Agent and Certificate Registrar and U.S. Bank National
Association ("U.S. Bank") as Trustee, the Trustee and the Special Servicer are
granted certain powers, responsibilities and authority in connection with the
completion and the filing and recording of assignments of mortgage, deeds of
trust or similar documents, Form UCC-2 and UCC-3 assignments of financing
statements, reassignments of assignments of leases, rents and profits and other
Mortgage Loan documents required to be filed or recorded in appropriate public
filing and recording offices;
WHEREAS, MSMC has agreed to provide this Limited Power of Attorney pursuant
to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMC does hereby make, constitute and appoint U.S. Bank,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, MSMC's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in MSMC's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with
5-1
respect to the Mortgage Loans which are customarily and reasonably necessary or
appropriate to assign agreements, documents and instruments pertaining to the
Mortgage Loans, in each case in favor of the Trustee as set forth in the
definition of "Mortgage File" in, and in accordance with Section 1.1 of, the
Pooling and Servicing Agreement, and to evidence, provide notice of and perfect
such assignments and conveyances in favor of the Trustee in the public records
of the appropriate filing and recording offices; and (ii) to file or record in
the appropriate public filing or recording offices, all other Mortgage Loan
documents to be recorded under the terms of the Pooling and Servicing Agreement
or any such Mortgage Loan documents which have not been submitted for filing or
recordation by MSMC on or before the date hereof or which have been so submitted
but are subsequently lost or returned unrecorded or unfiled as a result of
actual or purported defects therein, in order to evidence, provide notice of and
perfect such documents in the public records of the appropriate filing and
recording offices. Notwithstanding the foregoing, this Limited Power of Attorney
shall grant to U.S. Bank and JER only such powers, responsibilities and
authority as are set forth in Section 2.1 of the Mortgage Loan Purchase
Agreement.
MSMC does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
MSMC's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in MSMC's name, place and stead solely to exercise and perform all of the
rights, authority and powers of U.S. Bank as set forth in the preceding
paragraph in the event of the failure or the incapacity of U.S. Bank to do so
for any reason. As between JER and any third party, no evidence of the failure
or incapacity of U.S. Bank shall be required and such third party may rely upon
JER's written statement that it is acting pursuant to the terms of this Limited
Power of Attorney.
17.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMC's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMC might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMC agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMC, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMC's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
18.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMC and MSMC's successors and assigns.
19.
This Limited Power of Attorney shall continue in full force and effect with
respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
19.1 with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
19.2 with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
19.3 with respect to the Trustee, the appointment of a receiver or
conservator with respect to the business of the Trustee, or the filing
of a voluntary or involuntary petition in bankruptcy by or against the
Trustee;
19.4 with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or
the filing of a voluntary or involuntary petition in bankruptcy by or
against the Special Servicer;
19.5 with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
19.6 with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance with
its terms; and
19.7 with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to the
Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties
or obligations of MSMC under the Mortgage Loan Purchase Agreement, and nothing
herein shall constitute a waiver of any rights or remedies under the Pooling and
Servicing Agreement.
20.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
21.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, MSMC has caused this instrument to be executed and its
corporate seal to be affixed hereto by its officer duly authorized as of August
17, 2006.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 17th day of August, 2006, before me appeared _____________________,
to me personally known, who, being by me duly sworn did say that he/she is the
_____________________ of Xxxxxx Xxxxxxx Mortgage Capital Inc., and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said __________________ acknowledged
said instrument to be the free act and deed of said corporation.
----------------------------------------------------
Name:
----------------------------------------------
Notary Public in and for said County and State
My Commission Expires:
_________________________
