EXHIBIT 99.1
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 22, 2006
(this "Agreement"), is entered into between Xxxxxxx Xxxxx Mortgage Lending, Inc.
(the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule III. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Wachovia Bank, National
Association ("Wachovia") as master servicer (the "Master Servicer"), Midland
Loan Services, Inc. as special servicer (the "Special Servicer") and LaSalle
Bank National Association as trustee (the "Trustee"). Capitalized terms used but
not defined herein (including the schedules attached hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of March 22, 2006 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), EHY Securities
(USA), LLC ("EHY"), Banc of America Securities LLC ("Banc of America"), Xxxxxxx,
Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"); Xxxxxxx Xxxxx, Countrywide Securities, EHY, Banc of America, Xxxxxxx
Sachs and Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"),
whereby the Purchaser will sell to the Underwriters all of the Certificates that
are to be registered under the Securities Act of 1933, as amended (such
Certificates, the "Publicly-Offered Certificates"). The Purchaser has also
entered into a Certificate Purchase Agreement, dated as of March 22, 2006 (the
"Certificate Purchase Agreement"), with Xxxxxxx Xxxxx for itself and as
representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
$1,187,827,676 (the "MLML Mortgage Loan Balance") (subject to a variance of plus
or minus 5.0%) as of the close of business on the Cut-off Date, after giving
effect to any payments due on or before such date, whether or not such payments
are received. The MLML Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $2,141,833,152 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take place on March
30, 2006 or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 99.2307% of the
MLML Mortgage Loan Balance as of the Cut-off Date, plus (ii) $5,416,353, which
amount represents the amount of interest accrued on the MLML Mortgage Loan
Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, (i) the Closing Date Deposit (in the amount of $62,956.78) to the
Master Servicer on the Closing Date and (ii) the Additional MLMLI Deposit to the
Trustee prior to the initial Distribution Date. The Closing Date Deposit and the
Additional MLMLI Deposit shall be delivered to the account specified by the
Master Servicer or Trustee, as applicable, by wire transfer of immediately
available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the
Seller's receipt of the Purchase Consideration and the satisfaction or waiver of
the conditions to closing set forth in Section 5 of this Agreement (which
conditions shall be deemed to have been satisfied or waived upon the Seller's
receipt of the Purchase Consideration), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds and all of the Seller's right, title and
interest in and to the Closing Date Deposit and the Additional MLMLI Deposit.
The Mortgage Loan Schedule, as it may be amended, shall conform to the
requirements set forth in this Agreement and the Pooling and Servicing
Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
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(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered will be held
by the Trustee in escrow for the benefit of the Seller at all times prior to the
Closing Date. The Mortgage File with respect to each Mortgage Loan that is a
Trust Mortgage Loan shall contain the following documents:
(i) (A) the original executed Mortgage Note for the subject
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1 (or, in the case of a Loan Combination, in
favor of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1, and in its capacity as lead
lender on behalf of the holder(s) of the related Non-Trust Loan(s)), or in
blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above) in favor
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of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2006-1, Commercial Mortgage
Pass-Through Certificates, Series 2006-1 (or, in the case of a Loan
Combination, in favor of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2006-1,
Commercial Mortgage Pass-Through Certificates, Series 2006-1, and in its
capacity as lead lender on behalf of the holder of the related Non-Trust
Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement assignment,
in form suitable for filing in favor of LaSalle Bank National Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2006-1, Commercial Mortgage Pass-Through Certificates, Series 2006-1, as
assignee (or, in the case of a Loan Combination, in favor of LaSalle Bank
National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2006-1, Commercial Mortgage Pass-Through
Certificates, Series 2006-1, and in its capacity as lead lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) an original or copy of any intercreditor agreement relating to
permitted debt of the Mortgagor and any intercreditor agreement relating
to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit, in each case relating
to the subject Mortgage Loan;
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(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan Combination,
an original or copy of the related Loan Combination Intercreditor
Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Trustee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans, (b) are
reasonably necessary for the ongoing administration and/or servicing of such
Mortgage Loans by the Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the Master Servicer (or, at the direction of the Master Servicer, to the
appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due
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diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for each Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to
the Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the
Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other
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instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by the
Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered
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insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the
Trustee for the benefit of the Certificateholders as of the Closing Date
(unless a different date is specified therein), with respect to (and
solely with respect to) each Mortgage Loan (other than the 1995-C2
Mortgage Loans (as defined below), subject, however, to the exceptions set
forth on Annex A to Schedule I of this Agreement.
The Seller hereby makes the representations and warranties contained
in Schedule II hereto for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date (unless a different
date is specified therein), with respect to (and solely with respect to) each
Mortgage Loan (such Mortgage Loans, collectively, the "1995-C2 Mortgage Loans")
that was acquired by the Seller in connection with the termination of the trust
for the series of mortgage-pass through certificates captioned "Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series 1995-C2",
subject, however, to the exceptions set forth on Annex A to Schedule II of this
Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Collection Account any Substitution Shortfall Amount in
connection therewith; provided, however, that, unless the Document Defect or
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is
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diligently proceeding with the cure of such Document Defect or Breach within
such 90-day period, the Seller shall have an additional 90 days to complete such
cure (or, failing such cure, to repurchase or substitute the related Mortgage
Loan (which, for purposes of such repurchase or substitution, shall include an
REO Loan)); and provided, further, that with respect to such additional 90-day
period, the Seller shall have delivered an officer's certificate to the Trustee
setting forth the reason(s) such Document Defect or Breach is not capable of
being cured within the initial 90-day period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided, further, that no Document Defect (other
than with respect to the Specially Designated Mortgage Loan Documents) shall be
considered to materially and adversely affect the interests of the
Certificateholders or the value of the related Mortgage Loan unless the document
with respect to which the Document Defect exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the Mortgage Loan, establishing the validity or priority of any lien
or any collateral securing the Mortgage Loan or for any immediate servicing
obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans, determined at the time of repurchase or
substitution, based upon an appraisal obtained by the Special Servicer at the
expense of the Seller shall not be greater than the weighted average
loan-to-value ratio for all such Crossed Loans, including the affected Crossed
Loan determined at the time of repurchase or substitution, based upon an
appraisal obtained by the Special Servicer at the expense of the Seller;
provided, that if such debt service coverage and loan-to-value criteria are
satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Trustee, at the expense
of the Seller, of an Opinion of Counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (ii) the
consent of the Controlling Class Representative (if one is then
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acting), which consent shall not be unreasonably withheld or delayed. In the
event that one or more of such other Crossed Loans satisfy the aforementioned
criteria, the Seller may elect either to repurchase or substitute for only the
affected Crossed Loan as to which the related Document Defect or Breach exists
or to repurchase or substitute for all of the Crossed Loans in the related
Crossed Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of a Crossed Loan being repurchased shall be
prepared at the expense of the Seller and, where required, with the consent of
the related Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach known to the Seller, the Seller shall
provide, once every ninety days, the officer's certificate to the Trustee
described above as to the reason(s) such Document Defect or Breach remains
uncured and as to the actions being taken to pursue cure; provided, however,
that, without limiting the effect of the foregoing provisions of this Section
3(c), if such Document Defect or Breach shall materially and adversely affect
the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to the last proviso in the sole sentence of the
preceding paragraph), the Seller shall in all cases on or prior to the second
anniversary of the Closing Date either cause such Document Defect or Breach to
be cured or repurchase or substitute for the affected Mortgage Loan. The
delivery of a commitment to issue a policy of lender's title insurance as
described in representation 8 set forth on Schedule I hereto in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect or Breach with respect to any Mortgage File if such
actual policy of insurance is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may
10
only be foreclosed upon by exercise of cross-collateralization provisions of
such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection with such release, (ii) the remaining Mortgaged Property(ies) satisfy
the requirements, if any, set forth in the Mortgage Loan documents and the
Seller provides an opinion of counsel to the effect that such release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code
or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the Master Servicer or the Special
Servicer from the related Mortgagor and not a repurchase or substitution of the
related Mortgage Loan. Following the Seller's remittance of funds in payment of
such costs and expenses, the Seller shall be deemed to have cured the breach of
representation 30 in all respects. To the extent any fees or expenses that are
the subject of a cure by the Seller are subsequently obtained from the related
Mortgagor, the cure payment made by the Seller shall be returned to the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller, acting in
its sole discretion, may effect a repurchase or substitution (in accordance with
the provisions of this Section 3(c) setting forth the manner in which a Mortgage
Loan may be repurchased or substituted) of a Mortgage Loan, as to which
representation 30 set forth on Schedule I has been breached, in lieu of paying
the costs and expenses that were the subject of the breach of representation 30
set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the Collection Account, and, if
applicable, the delivery of the Mortgage File(s) and the Servicing File(s) for
the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively, (i) the Trustee shall be required to execute and
deliver such endorsements and assignments as are provided to it by the Master
Servicer or the Seller, in each case without
11
recourse, representation or warranty, as shall be necessary to vest in the
Seller the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of
12
creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other instrument to which
the Purchaser is a party or by which the Purchaser is bound, which default might
have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
13
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Austin LLP on the Closing
Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
(f) One or more letters from the independent accounting firm of
Ernst & Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus (as defined in Section 6(d) of this Agreement) and Prospectus
Supplement (as defined in Section 6(d) of this Agreement), respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of March 22, 2006,
among the Seller, Countrywide Commercial Real Estate Finance, Inc., Eurohypo AG,
New York Branch, the Purchaser, the Underwriters and the Initial Purchasers.
Both parties agree to use their best reasonable efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Agreement to Appointment of Master Servicer, dated as of
March 30, 2006, between the Seller and Wachovia, duly executed by such parties;
14
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his
attention that would lead him to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage
Loans or omitted or omit to state therein a material fact necessary in order to
make the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage
Loans" (insofar as the information contained in Annex A-1 relates to the
Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Free Writing
Prospectus, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex B to the Free Writing
Prospectus entitled "Certain
15
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Free Writing Prospectus, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Free Writing Prospectus (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Free Writing Prospectus (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and exclusive of
any statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Offering Prospectus--Relevant Parties--Sponsors/Mortgage Loan
Sellers" and "--The Loan Combination Controlling Parties", "Summary of Offering
Prospectus--The Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors" and "Description of the Mortgage Pool".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Prospectus Supplement (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and exclusive of
any statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan
Sellers" and "--The Loan Combination Controlling Parties", "Summary of
Prospectus Supplement--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors" and "Description of the Mortgage Pool".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated March
14, 2006, and relating to the Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum
dated March 22, 2006, and relating to the Private Certificates;
16
"Prospectus" means the prospectus dated March 22, 2006.
"Prospectus Supplement" means the prospectus supplement dated March
22, 2006, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means March 22, 2006, at 2:45PM.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws of the Seller, and (iii) a certificate of good standing
of the Seller issued by the State of Delaware not earlier than thirty (30) days
prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
corporate and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection
17
Account, the Distribution Account or, if established, the REO Account whether in
the form of cash, instruments, securities or other property; (iii) the
assignment to the Trustee of the interest of the Purchaser as contemplated by
Section 1 of this Agreement shall be deemed to be an assignment of any security
interest created hereunder; (iv) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes, and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be possession by the secured party
for purposes of perfecting the security interest pursuant to Section 9-313 of
the UCC of the applicable jurisdiction; and (v) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement. The Seller does hereby
consent to the filing by the Purchaser of financing statements relating to the
transactions contemplated hereby without the signature of the Seller
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser and the Trustee any disclosure
information relating to any event, specifically relating to the Seller,
reasonably determined in good faith by the Purchaser as required to be reported
on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting reasonably
appropriate for inclusion in such form) insofar as such disclosure is required
under Items 1117 and 1119 of Regulation AB and Item 1.03 to From 8-K. The Seller
shall use reasonable efforts to deliver proposed disclosure language relating to
any event, specifically relating to the Seller, described under Items 1117 and
1119 of Regulation AB and Item 1.03 to From 8-K to the Trustee and the Purchaser
as soon as reasonably practicable after the Seller becomes aware of such event
and in no event more than two business days following the occurrence of such
event if such event is reportable under Item 1.03 to Form 8-K. The obligation of
the Seller to provide the above referenced disclosure materials will terminate
upon notice or other written confirmation from the Purchaser or the Trustee that
the Trustee has filed a Form 15 with respect to the Trust Fund as to that fiscal
year in accordance with Section 8.16 of the Pooling and Servicing Agreement or
the reporting requirements with respect to the Trust under the Securities
Exchange Act of 1934 have otherwise automatically suspended. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
9 will be used in the preparation of reports meeting the reporting requirements
of the Trust under Section 13(a) and/or Section 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
by facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or
18
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO
EACH IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS
AGREEMENT.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
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SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any
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document referred to in the definition of "Mortgage File" in this Agreement and
covering all the Mortgage Loans in such Crossed Loan Group, the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such Crossed Loan Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxxx X. Xxx
--------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx or Director, CMBS
Securitization
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
MLML MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(excluding 1995-C2 Mortgage Loans)
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in March 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
March 2006, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or encumbrances
that are pari passu with the lien of such Mortgage, in any event subject,
however, to the following (collectively, the "Permitted Encumbrances"): (a) the
lien for current real estate
taxes, ground rents, water charges, sewer rents and assessments not yet
delinquent or accruing interest or penalties; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment binding upon the title insurer); (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or "marked-up" commitment
binding upon the title insurer); (d) other matters to which like properties are
commonly subject; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (f) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Crossed Group; and (g)
if the related Mortgaged Property consists of one or more units in a
condominium, the related condominium declaration. The Permitted Encumbrances do
not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default beyond applicable notice and grace periods. No person other
than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its
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designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) neither the related Mortgaged Property
nor any material portion thereof has been released from the lien of such
Mortgage and (c) the related Mortgagor has not been released from its
obligations under such Mortgage, in whole or in material part. With respect to
each Mortgage Loan, since the later of (a) March 6, 2006 and (b) the closing
date of such Mortgage Loan, the Seller has not executed any written instrument
that (i) impaired, satisfied, canceled, subordinated or rescinded such Mortgage
Loan, (ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance of
doubt, the preceding sentence does not relate to any release of escrows by the
Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of
I-3
subject parcel constituting a portion of the related Mortgaged Property. Such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid, no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) inures to the benefit of the Trustee as sole insured
without the consent of or notice to the insurer. Such Title Policy contains no
exclusion for whether, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available) that, (a) the related Mortgaged Property has access to a public road,
and (b) the area shown on the survey, if any, reviewed or prepared in connection
with the origination of the related Mortgage Loan is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen meeting ASTM standards or an update of a previously conducted
environmental site assessment (which update may have been performed pursuant to
a database update), was performed by an
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independent third-party environmental consultant (licensed to the extent
required by applicable state law) with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) the report of each such assessment, update or screen, if any (an
"Environmental Report"), is dated no earlier than (or, alternatively, has been
updated within) twelve (12) months prior to the date hereof, (c) a copy of each
such Environmental Report has been delivered to the Purchaser, and (d) either:
(i) no such Environmental Report, if any, reveals that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a
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deductible or the deductible amount is held in escrow and all premiums have been
paid in full. Each Mortgagor represents and warrants in the related Mortgage
Loan documents that except as set forth in certain environmental reports and to
its knowledge it has not used, caused or permitted to exist and will not use,
cause or permit to exist on the related Mortgaged Property any hazardous
materials in any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. The related Mortgagor (or affiliate thereof)
has agreed to indemnify, defend and hold the Seller and its successors and
assigns harmless from and against any and all losses, liabilities, damages,
injuries, penalties, fines, out-of-pocket expenses and claims of any kind
whatsoever (including attorneys' fees and costs) paid, incurred or suffered by
or asserted against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent
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commercial mortgage lenders for properties of similar types. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(or a specified dollar amount which is reasonably estimated to cover no less
than twelve (12) months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V), and flood insurance was available, a flood insurance policy is in
effect with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of: (1) the minimum amount required, under the
terms of coverage, to compensate for any damage or loss on a replacement basis,
(2) the outstanding principal balance of such Mortgage Loan, and (3) the maximum
amount of insurance available under the applicable federal flood insurance
program. Each Mortgaged Property located in California or in seismic zones 3 and
4 is covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. Each Mortgaged Property located within
Florida or within 25 miles of the coast of North Carolina, South Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the insurable
replacement cost of the improvements located on such Mortgaged Property (less
physical depreciation). All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without at least ten (10)
days' prior written notice to the mortgagee; and no such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Additionally, for any Mortgage Loan having a Cut-off Date Balance equal
to or greater than $20,000,000, the insurer for all of the required coverages
set forth herein has a claims paying ability or financial strength rating from
S&P or Xxxxx'x of not less than A-minus (or the equivalent), or from A.M. Best
Company of not less than "A-minus: V" (or the equivalent) and, if rated by
Fitch, of not less than "A-" from Fitch (or the equivalent). With respect to
each Mortgage Loan, the related Mortgage Loan documents require that the related
Mortgagor or a tenant of such Mortgagor maintain insurance as described above or
permit the related mortgagee to require insurance as described above. Except
under circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage Loan
documents for each Mortgage Loan provide that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage Loan documents may entitle the related Mortgagor to
any portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Mortgagor holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in representation
18 below).
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Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is
a debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
I-8
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as the repair or restoration progresses
(except in such cases where
I-9
a provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related
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Mortgagor, provides for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property, or provides
for the negative amortization of interest, except that, in the case of an ARD
Loan, such Mortgage Loan provides that, during the period commencing on or about
the related Anticipated Repayment Date and continuing until such Mortgage Loan
is paid in full, (a) additional interest shall accrue and may be compounded
monthly and shall be payable only after the outstanding principal of such
Mortgage Loan is paid in full, and (b) a portion of the cash flow generated by
such Mortgaged Property will be applied each month to pay down the principal
balance thereof in addition to the principal portion of the related monthly
payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a
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representation of the related Mortgagor at the time of origination of such
Mortgage Loan, (v) a zoning report from a zoning consultant, or (vi) other due
diligence that a commercially reasonable originator of similar mortgage loans in
the jurisdiction where the related Mortgaged Property is located customarily
performs in the origination of comparable mortgage loans, the related Mortgagor,
the related lessee, franchise or operator was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Crossed Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price in connection
therewith; and provided, further, that certain Crossed Groups or individual
Mortgage Loans secured by multiple parcels may permit the related Mortgagor to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan documents provide that the
related Mortgagor is responsible for the payment of all reasonable costs and
expenses associated with defeasance incurred by the related mortgagee, including
Rating Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan documents provide that the related Mortgagor is
I-12
responsible for all reasonable costs and expenses associated with an assumption
incurred by the related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by
I-13
any cash management provisions of the related Mortgage Loan documents) except on
an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted for filing and/or recording
to a title company pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee. Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing or
recording of UCC Financing Statements are required in order to effect such
perfection.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any,
I-14
constitute "customary prepayment penalties" within meaning of Treasury
Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
(identified on Annex D) that consists of a leasehold estate that is not a
material ground lease, which ground lease is not the subject of representation
18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
I-15
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
Representation #2-Ownership of Mortgage Loans
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
--------------------------------------------------------------------------------
119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
--------------------------------------------------------------------------------
Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
--------------------------------------------------------------------------------
Representation #4- Lien; Valid Assignment
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
--------------------------------------------------------------------------------
119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
--------------------------------------------------------------------------------
Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
--------------------------------------------------------------------------------
Ashford Pool 2, With respect to one property for Ashford Pool 2
and three
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Ashford Pool 3 properties for Ashford Pool 3 comprising the
Mortgaged Property, an affiliate of Marriott
International, Inc. serves as manager of the
Mortgaged Property and, pursuant to the applicable
management agreements, maintains escrow reserve
accounts for payment of taxes and insurance, and
for replacement of furniture, fixtures and
equipment. The lender does not have a security
interest in these escrow accounts held by the
manager.
--------------------------------------------------------------------------------
Galileo NXL Two of the tenants at the Xxxxx Xxxx,
Retail Portfolio 3 Reynoldsburg, Ohio property have the option to
purchase the respective parcel it currently
leases, the exercise of which is permitted subject
to the satisfaction of certain conditions.
One of the tenants at the Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxx property has the option to purchase the
parcel it currently leases in the event the
landlord terminates the lease due to casualty. The
Mortgage Loan documents require the related
borrower to obtain the lender's consent prior to
taking any action which would enable the tenant to
exercise such purchase option.
--------------------------------------------------------------------------------
Xxxx X. Xxxx The tenant has an option to purchase the mortgaged
Realty property in the 9th year of its 10 year lease. If
the option is exercised the related borrower must
either (i) fully defease the loan or (ii) if the
option is exercised after the lockout period,
prepay the loan in full.
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Representation #6- Mortgage Status; Waivers and Modifications
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
The security interest created by the related
mortgage and any separate security instrument and
the assignment of leases are for the benefit of
the holder of the Mortgage Loan included in the
trust and the holders of the other mortgage loan,
not included in the trust.
The related Loan Combination Intercreditor
Agreement had not been completed by March 6, 2006.
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119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
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secured by the same mortgage instrument and is
cross-defaulted with the other.
The security interest created by the related
mortgage and any separate security instrument and
the assignment of leases are for the benefit of
the holder of the Mortgage Loan included in the
trust and the holders of the other mortgage loan,
not included in the trust.
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Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
The security interest created by the related
mortgage and any separate security instrument and
the assignment of leases are for the benefit of
the holder of the Mortgage Loan included in the
trust and the holders of the other mortgage loan,
not included in the trust.
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Galileo NXL Retail At origination, the Mortgage Loan was
Portfolio 3 cross-collateralized and cross-defaulted with two
other loans secured by similar properties. The
Mortgage Loan is no longer cross-collateralized
and cross-defaulted with the two other loans
pursuant to a cross release notice dated December
5, 2005 in the case of one loan and a cross
release notice dated immediately prior to the sale
of the Mortgage Loan hereunder in the case of the
other loan.
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Radisson Forth The documentation regarding the release of one of
Worth the hotel towers and the conversion of the hotel
franchise had not been completed by March 6, 2006.
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Representation #7-Condition of Property; Condemnation
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The mortgaged property is subject to the
acquisition of temporary and permanent easements
from the Massachusetts Bay Transportation
Authority for the construction, maintenance and
operation of a new headhouse which is part of the
Blue Line Modernization State Street
Rehabilitation. There is a Memorandum of
Understanding with respect to these matters.
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Representation #8-Title Insurance
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a
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multiple loan structure comprised of multiple
mortgage loans, all of which (whether or not
included in the trust) are secured by the same
mortgage instrument and are cross-defaulted.
Only the right title and interest of the Seller in
the mortgage loan identified on the Mortgage Loan
Schedule is being conveyed to the Purchaser.
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119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
Only the right title and interest of the Seller in
the mortgage loan identified on the Mortgage Loan
Schedule is being conveyed to the Purchaser.
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Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
Only the right title and interest of the Seller in
the mortgage loan identified on the Mortgage Loan
Schedule is being conveyed to the Purchaser.
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Representation #10-Mortgage Provisions
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Ashford Pool 2, With respect to one property for Ashford 2 and
Ashford Pool 3 three properties for Ashford 3 comprising the
Mortgaged Property, the Mortgage Loan documents
require the Mortgagors to maintain insurance
coverage for acts of terrorism, however, the
Mortgage Loan documents also specify that so long
as Marriott International, Inc. or any affiliate
thereof ("Marriott") is managing the Mortgaged
Property, the related Mortgagors are participating
in Marriott's insurance programs in accordance
with the applicable management agreements and no
default is continuing under any such management
agreement beyond applicable notice and cure
periods, the insurance provisions set forth in the
Marriott management agreements shall control and
govern any inconsistent provisions in the Mortgage
Loan documents. The Marriott management agreements
require terrorism insurance to be maintained (if
excluded under the casualty insurance maintained
pursuant to the management agreements) as
available under the Terrorism Risk Insurance
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--------------------------------------------------------------------------------
Act (as the same may be amended or replaced) or if
such Act is no longer available to the extent such
coverage is available at commercially reasonable
terms.
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East Thunderbird The Loan Documents provide that the related
Square borrower shall only be obligated to purchase as
much terrorism insurance coverage as is available
at a rate not to exceed two times the cost as of
the date of a separate insurance policy providing
such coverage.
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Sprint Data Center If any of the policies of insurance covering the
risks required to be covered under the Mortgage
Loan documents contains an exclusion from coverage
for acts of terrorism, Mortgagor shall obtain and
maintain a separate policy providing such coverage
in the event of any act of terrorism, provided
such coverage is commercially available for
properties similar to the Mortgaged Property and
located in or around the region in which the
Mortgaged Property is located.
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Representation #12-Environmental Conditions
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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119 North 4th There is an above ground storage tank located in
Street the basement of the mortgaged property. At
origination the related borrower was required to
deposit $40,000 in a reserve account with the
lender to be released to the borrower provided
that the borrower delivers evidence to the lender
of the tank's removal within a specified time
frame. In the event the tank is not so removed the
reserve account will be held by the lender as
additional security for the loan.
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Galileo NXL In the Mortgage Loan documents, Mortgagors
Retail Portfolio 3 represent and warrant that:
(A) except as may be disclosed in the
environmental reports provided to Lender, there
are no claims, liabilities, investigations,
litigation, administrative proceedings, pending or
to the knowledge of the Mortgagors, threatened, or
judgments or orders relating to any hazardous
materials (collectively, "Environmental Claims")
asserted or, to the knowledge of the Mortgagors,
threatened against any Mortgagor or relating to
any Property and except as disclosed in the
environmental reports delivered to Lender prior to
the closing of the Mortgage Loan, no Mortgagor
nor, to the knowledge of the Mortgagors, any other
Person has caused or permitted any hazardous
materials to be used, generated, reclaimed,
transported, released, treated, stored or disposed
of in a manner which could form the basis for an
Environmental Claim against any Mortgagor or
relating to any Property; (B) except as disclosed
in the environmental reports delivered to Lender
prior to the closing of the Mortgage
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--------------------------------------------------------------------------------
Loan , except for materials customarily used or
stored in connection with operation and management
of properties similar to the Properties, which
materials at the Properties exist only in legal
quantities and are stored, contained, transported,
used, released, and disposed of legally and
without violation of any Environmental Laws, to
the knowledge of the Mortgagors, no hazardous
materials are or were stored or otherwise located,
and no underground storage tanks or surface
impoundments are or were located, on any Property
or any other real property currently or formerly
owned, leased or operated by any Mortgagor, or to
the knowledge of the Mortgagors, on adjacent
parcels of real property, and no part of such real
property, or to the knowledge of the Mortgagors,
no part of such adjacent parcels of real property,
including the groundwater located therein or there
under, is presently contaminated by hazardous
materials; and (C) to the knowledge of the
Mortgagors, except as may be set forth in the
environmental reports, the Mortgagors have been
and are currently in compliance in all material
respects with all applicable Environmental Laws,
including obtaining and maintaining in effect all
material permits, licenses or other authorizations
required by applicable Environmental Laws.
"Environmental Laws" means any Federal, state, or
local law, ordinance or regulation or any court
judgment or order of any Federal, state or local
agency or regulatory body applicable to Mortgagor
or to any Property relating to industrial hygiene
or to environmental or unsafe conditions
including, but not limited to, those relating to
the generation, manufacture, storage, handling,
transportation, disposal, release, emission or
discharge of hazardous material, those in
connection with the construction, fuel supply,
power generation and transmission, waste disposal
or any other operations or processes relating to
any Property, and those relating to the
atmosphere, soil, surface and ground water,
wetlands, stream sediments and vegetation on,
under, in or about any Property. "Environmental
Laws" also shall include, but not be limited to,
the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous
Materials Transportation Act, the Resource
Conservation and Recovery Act, the Solid Waste
Disposal Act, the Clean Water Act, the Clean Air
Act, the Toxic Substance Control Act, the Safe
Drinking Water Act and the Occupational Safety and
Health Act, and all regulations adopted in respect
to the foregoing laws.
The indemnity does not cover any losses,
liabilities, obligations, claims, damages,
penalties, causes of action, fines and
out-of-pocket costs or expenses arising solely
from the gross
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--------------------------------------------------------------------------------
negligence or willful misconduct of the mortgagee.
The indemnity does not cover claims to the extent
occurring after the date of transfer of title to
the related Mortgaged Property to any indemnified
party by foreclosure, deed-in-lieu thereof, the
exercise of any power of sale or otherwise;
provided that the indemnitors can prove that such
claim did not arise from any hazardous materials
which existed on, in, under or affecting such
Mortgaged Property prior to transfer date.
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Representation #14-Insurance
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The loan documents provide that the required
coverage shall be issued by one or more primary
insurers having a claims-paying ability of "A" or
better (excluding earthquake and terrorism
insurance) or its equivalent by each of the rating
agencies, or a syndicate of insurers through which
at least 75% of the coverage by primary insurers
(if there are four (4) or fewer members of the
syndicate) or at least 60% of the coverage by
primary insurers (if there are five (5) or more
members of the syndicate) is with carriers having
claims-paying ability ratings of "A" or better
(provided that the first layer of coverage shall
be issued by an insurer having a claims-paying
ability of "A" or better and all such carriers
shall have claims-paying ability ratings of not
less than "BBB-", "Baa3" or the equivalent by each
of the rating agencies), or, subject to the
mortgagor's prior receipt of a rating confirmation
(i.e., confirmation in writing from each
applicable rating agency that no downgrade,
qualification or withdrawal of any rating shall
occur), a claims-paying ability less that the
foregoing; and notwithstanding the foregoing,
Seller has approved the layer of insurance
provided by Real State Insurance Corporation and
its ratings on the closing date of the loan.
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Ashford Pool 2, With respect to one property in Ashford 2 and
Ashford Pool 3 three properties in Ashford 3 comprising the
Mortgaged Property, the Mortgage Loan documents
specify that so long as Marriott International,
Inc. or any affiliate thereof ("Marriott") is
managing the Mortgaged Property, the related
Mortgagors are participating in Marriott's
insurance programs in accordance with the
applicable management agreements and no default is
continuing under any such management agreement
beyond applicable notice and cure periods, the
insurance provisions set forth in the Marriott
management agreements shall control and govern any
inconsistent provisions in the Mortgage Loan
documents. The management agreements provide that
Marriott, in its discretion and provided certain
other conditions are satisfied, may
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maintain the specified insurance on behalf of the
related Mortgagors.
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East Thunderbird The Loan Documents provide that the related
Square borrower shall only be obligated to purchase as
much terrorism insurance coverage as is available
at a rate not to exceed two times the cost as of
the date of a separate insurance policy providing
such coverage.
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Xxxxxxxx The mortgaged property is a condominium unit and
Apartments the loan documents provide that the condominium
association may insure the mortgaged property so
long as the coverage is in compliance with the
condominium documents and the loan documents.
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Galileo NXL Other than with respect to D&O Insurance, an
Retail Portfolio 3 insurance company shall not be satisfactory unless
such insurance company (a) is licensed or
authorized to issue insurance in the State where
the Property is located and (b) has a claims
paying ability rating by the rating agencies of
AA- (or its equivalent). Notwithstanding the
foregoing, a carrier which does not meet the
foregoing ratings requirement shall nevertheless
be deemed acceptable hereunder provided that such
carrier is reasonably acceptable to Lender and the
Borrower shall obtain and deliver to Lender a
rating confirmation with respect to such carrier
from each of the rating agencies, provided,
however, if any required insurance coverage is
maintained by a syndicate of insurers, the
preceding ratings requirements shall be deemed
satisfied (without any required rating
confirmation) as long as at least seventy five
percent (75%) of the coverage (if there are four
or fewer members of the syndicate) or at least
sixty percent (60%) of the coverage (if there are
five or more members of the syndicate) is
maintained with carriers meeting the claims-paying
ability ratings requirements by S&P and Xxxxx'x
(if applicable) set forth above and all carriers
in such syndicate have a claims-paying ability
rating by S&P of not less than "BBB" and by
Xxxxx'x of not less than "Baa2" (to the extent
rated by Xxxxx'x).
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Kenwood Towne The Kenwood Towne Center Loan requires Borrower to
Center obtain flood hazard insurance in an amount equal
to the lesser of (i) the outstanding principal
balance of the Note or (ii) the maximum amount of
such insurance available under the National Flood
Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood
Insurance Reform Act of 1994.
The Kenwood Towne Center Loan requires Borrower to
obtain earthquake insurance, provided the Property
is located in seismic zone 3 or 4, with coverage
amounts of not less than the product of the
"Probable Maximum Loss" applicable to the
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Property, as set forth in the seismic report
satisfactory to Lender prepared by a seismic
engineer or other qualified consultant, multiplied
by the replacement cost of the Improvements as
such replacement cast may be reasonably estimated
by Lender, and with a deducible not to exceed 5%
of the total insured value at risk.
RATINGS CRITERIA:
1. Borrower will maintain the (i) workers'
compensation, motor vehicle liability and
earthquake insurance coverage pursuant to policies
issued by either (A) one or more financially sound
and responsible insurance companies authorized to
do business in the state in which the Property is
located and having a claims paying ability rating
of "A" or better by S&P or (B) a syndicate of
insurers through which (1) at least fifty percent
(50%) of claims coverage shall be with one or more
carriers having a claims-paying-ability rating by
A.M. Best of "A-X" or better, (2) subject to the
requirement set forth in Section 6.1(b)(ii)(B)(1)
of the Loan Agreement, at least ninety percent
(90%) of claims coverage (inclusive of the
coverage provided by carriers described in (1)
above) shall be with one or more carriers having a
claims paying ability rating by A.M. Best of
"A-VIII" or better, (3) the balance of the
coverage not to exceed ten percent (10%) of claims
coverage is with one or more carriers having a
claims paying ability rating by A.M. Best of
"A-VII" or better and (4) provided, further, with
regard to any insurance carrier which has a
claims-paying-ability rating by A.M. Best of less
than "A-X" such carrier may not represent more
than five percent (5%) of the total earthquake
insurance.
2. Borrower will maintain the commercial general
liability insurance coverage with either (A) one
or more other domestic primary insurers having or
a syndicate of insurers through which at least
sixty percent (60%) of the coverage is with
carriers having a claims-paying-ability rating by
S&P not lower than "A", at least seventy-five
percent (75%) of the coverage (including, for the
purposes of such calculation, the carriers which
are rated not lower than "A") is with carriers
having a claims-paying-ability rating by S&P not
lower than "BBB" or (B) one or more carriers
having a claims paying ability rating by A.M. Best
of "A/X" or better.
3. Except as set forth in clauses (1) and (2)
above, Borrower will maintain (1) the insurance
coverage described in Section 6.1(a) of the Loan
Agreement with either (A) one or more financially
sound and responsible insurance companies
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--------------------------------------------------------------------------------
authorized to do business in the state in which
the Property is located and having a
claims-paying-ability rating by S&P not lower than
"A" or (B) a syndicate of insurers through which
at least seventy-five percent (75%) of the
coverage (if there are 4 or fewer members of the
syndicate) or at least 60% of the coverage (if
there are 5 or more members of the syndicate) is
with carriers having a claims-paying-ability
rating by S&P not lower than "A" and the balance
of the coverage is, in each case, with insurers
having a claims-paying-ability rating by S&P of
not lower than "BBB", provided that in each case,
the first loss risk is borne by the carriers
having a claims-paying-rating by S&P of not lower
than "A", and (2) the flood hazard insurance
coverage described in Section 6.1(a)(i) of the
Loan Agreement with any insurance company
authorized by the United States government to
issue such insurance provided such flood hazard
insurance is reinsured by the United States
government.
--------------------------------------------------------------------------------
Sprint Data Center Mortgagor shall obtain and maintain, or shall
cause Sprint Communications Company, L.P., a
Delaware limited partnership ("Sprint"), to
maintain (to the extent Mortgagor may do so under
its lease with Sprint, as amended (the "Sprint
Lease"), insurance for Mortgagor and the Mortgaged
Property providing for the coverage required under
the Mortgage Loan documents.
Provided no default shall exist under the Sprint
Lease, and further provided that the tenant under
the Sprint Lease shall maintain a credit rating
issued by Standard & Poor's of "BB" or better (or
an equivalent rating issued by another nationally
recognized rating agency reasonably acceptable to
lender), such tenant shall be permitted to
self-insure with respect to the coverage required
under the Mortgage Loan documents in strict
accordance with the terms of the Sprint Lease, and
such self-insurance shall be deemed to satisfy the
insurance requirements of the Mortgage Loan
documents.
If any portion of the improvements on the
Mortgaged Property is currently or at any time in
the future located in a federally designated
"special flood hazard area," Mortgagor shall
obtain flood insurance in an amount equal to the
lesser of (i) the outstanding principal balance of
the Mortgage Note or (ii) the maximum amount of
such insurance available under the National Flood
Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood
Insurance Reform Act of 1994, as each may be
amended or such greater amount as lender shall
require.
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Walgreen's The tenant may self-insure if they meet the
specified conditions.
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Freemont, As the tenant is self-insuring at this time a
Walgreen's Chula separate terrorism insurance policy was not
Vista required.
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Representation #17-Local Law Compliance
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Danovitz The mortgaged property is legally non-conforming.
Portfolio-Duff The building encroaches into the required 20 foot
Office Center setback by approximately 11.5 feet. Parking is
deficient by 9 spaces. L&O insurance was obtained.
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GN Resound The zoning letter for the mortgaged property
indicates the property violates applicable
landscaping, screening, parking and fire route
regulations. A plan has been submitted to the
municipality to address the landscaping and
screening violations and is under review. The loan
documents require the mortgagor to deliver to the
lender evidence of the resolution of all such
violations within 60 days of closing.
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Representation #18-Leasehold Estate
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The ground lease provides that the lender may
obtain a new lease for the remainder of the term
of the ground lease if the lender succeeds to the
related borrower's rights or if the related
borrower's rights have been extinguished; however
the ground lease does not explicitly provide that
rejection or disaffirmance of the ground lease in
bankruptcy court or under similar laws will
entitle the lender to obtain a new lease.
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Encino Valley A portion of the parking for Building A of the
Shopping Center mortgaged property is a ground lease interest.
Building A is legally nonconforming for parking
requirements so the ground lease parking is
required only if the rebuildability threshold of
75% is exceeded in a Building A casualty. The
ground lease does not provide for a new lease with
the lender in the event of a termination or
bankruptcy.
The term of the lease does not extend 20 years
past stated loan maturity. It extends exactly 10
years.
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Galileo NXL The Mortgage Loan is secured in part by a
Retail Portfolio 3 Leasehold Mortgage at the Fashion Corner property.
As to representation 18(i), a memorandum with
respect to the original Ground Lease has been
recorded. As to representation 18(v), the Ground
Lease requires lessor thereunder to give the
leasehold mortgagee written notice of any event of
default which with the giving of notice or lapse
of time, or both, would otherwise entitle lessor
to
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regain possession or to institute an action for
possession, or to re-enter the demised premises,
or to terminate the Ground Lease, but not that a
notice of termination is ineffective unless a copy
has been delivered to the leasehold mortgagee.
--------------------------------------------------------------------------------
Kenwood Towne The ground lease provides that the lender may
Center obtain a new lease for any reason provided that
lender has succeeded to borrower's rights or the
related borrower's rights under the ground lease
are extinguished; however the ground lease does
not explicitly provide that rejection or
disaffirmance of the ground lease in bankruptcy
court or under similar laws will entitle the
lender to a new lease.
The ground lease does not provide that any
modification or amendment without the lender's
consent is not binding on the lender.
--------------------------------------------------------------------------------
Trainer's Station The Mortgage Loan is secured in part by a
Shopping Center leasehold mortgage on a small portion of the
shopping center which contains parking. The ground
lease does not provide that insurance proceeds
will be paid to the tenant/mortgagor to restore
the property or pay down the mortgage loan.
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Representation #22-Legal Proceedings
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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135 West 27th The mortgagor is a cooperative corporation and is
Street defending a shareholder suit based on a dispute
over attempted termination of a proprietary lease,
the use of certain premises by a subtenant and
alterations to the premises. The suit is currently
pending.
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Representation #23-Other Mortgage Liens
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
Crestview While not specifically referring to rating agency
Apartments, fees, the related Mortgage Loan documents require
Regency that the Mortgagor pay the lender's costs in
Apartments, Hilton connection with the related Mortgagor seeking the
Garden Inn- lender's consent to an encumbrance.
Oxnard,
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00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
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119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
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Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
--------------------------------------------------------------------------------
Sprint Data Center Mortgagor covenanted and agreed to pay or
reimburse lender upon receipt of written notice
from lender for all reasonable costs and expenses
(including reasonable attorneys' fees and
disbursements) incurred by lender in connection
with, among other things, (except as otherwise
provided for in the Mortgage Loan documents) the
negotiation, preparation, execution, delivery and
administration of any consents, amendments,
waivers or other modifications to the Mortgage
Loan documents and any other documents or matters
reasonably requested by lender.
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Representation #26-Licenses and Permits
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
Airport Square The mortgagor will provide a certificate of
Shopping Center occupancy for several tenant spaces post-closing.
--------------------------------------------------------------------------------
Danovitz Portfolio- The certificates of occupancy were not available.
Duff Office Center, The loan documents require them to be delivered
Danovitz Portfolio- within 6 months of closing. The guarantor is
Parkway East liable for any related losses.
--------------------------------------------------------------------------------
South Virginia The mortgagor will provide a certificate of
Plaza occupancy for several tenant spaces post-closing
upon such tenants taking occupancy of such spaces.
With respect to each such certificate, a reserve
fund was established which requires an estoppel
evidencing, among other things, the issuance of
the certificate for release.
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Representation #28-Releases of Mortgaged Properties
--------------------------------------------------------------------------------
LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
Ashford Pool 3 The east tower of the Ft. Worth, TX property may
be released from the lien of the Mortgage Loan
upon the satisfaction of certain conditions,
including, inter alia, the conversion from a
Radisson franchise to a Hilton franchise, which
has been approved by the Seller and will be
effective April 1, 2006.
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Galileo NXL Retail Parcel releases are permitted upon the
satisfaction of certain
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Portfolio 3 conditions specified in the loan documents. In
addition, with respect to Xxxxx Xxxx Property, two
tenants at the property have the option to
purchase the parcel that it currently leases. The
loan documents permit the borrower to release such
parcel from the lien of the mortgage in connection
with the exercise of such purchase option or right
of first refusal upon the satisfaction of certain
conditions specified in the loan documents.
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Representation #30- Defeasance and Assumption Costs
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
--------------------------------------------------------------------------------
Crestview While not specifically referring to rating agency
Apartments, fees, the related Mortgage Loan documents require
Regency that the Mortgagor pay the lender's costs in
Apartments, Hilton connection with a defeasance.
Garden Inn-Oxnard
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Galileo NXL The transfer provisions of the Mortgage Loan
Retail Portfolio 3 documents do not explicitly provide for the
payment of Lender's fees relating to transfers.
However, the Mortgage Loan documents provide that
whether or not the transactions contemplated
thereby shall be consummated, except as otherwise
expressly provided in Article X to the loan
agreement for the Mortgage Loan, the Mortgagors
shall be liable for and agrees to promptly pay all
reasonable fees, costs and expenses incurred by
Lender in connection with any matters contemplated
by or arising out of the loan agreement, including
the following, and all such fees, costs and
expenses shall be part of the Obligations, payable
on demand: (A) reasonable fees, costs and expenses
(including reasonable attorneys' fees, and
reasonable fees of other professionals retained by
Lender) incurred in connection with the
examination, review, due diligence investigation,
documentation and closing of the financing
arrangements evidenced by the Mortgage Loan
documents; (B) reasonable fees, costs and expenses
(including reasonable attorneys' fees and fees of
other professionals retained by Lender) incurred
in connection with the administration of the
Mortgage Loan documents and the Mortgage Loan and
any amendments, modifications and waivers relating
thereto; (C) reasonable fees, costs and expenses
(including reasonable attorneys' fees) incurred in
connection with the review, documentation,
negotiation, closing and administration of any
subordination or intercreditor agreements; and (D)
reasonable fees, costs and expenses (including
attorneys' fees and fees of other professionals
retained by Lender) incurred in any action to
enforce or interpret the Mortgage Loan documents
or to collect
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any payments due from any Mortgagor under the
Mortgage Loan documents or incurred in connection
with any refinancing or restructuring of the
credit arrangements provided under the Mortgage
Loan documents, whether in the nature of a
"workout" or in connection with any insolvency or
bankruptcy proceedings or otherwise.".
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Representation #34-Due-on-Sale
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Ashford Pool 2, Transfers of less than 49% of the equity interests
Ashford Pool 3 in Mortgagor are permitted. Provided that no event
of default has occurred and is continuing,
transfers of more than 49% of the equity interests
in Mortgagor are permitted upon satisfaction of
certain specified conditions and so long as (a)
prior to any secondary market transaction, lender
shall have consented to such transfer, such
consent not to be unreasonably withheld or
delayed, and (b) after any secondary market
transaction, Mortgagor shall have delivered (or
shall have caused to be delivered) to lender
written confirmation from each of the rating
agencies rating any securities issued in
connection with a secondary market transaction
that such transfer will not result in a downgrade,
withdrawal or qualification of any such
securities.
Provided that no event of default has occurred and
is continuing, the sale of all (but not fewer than
all) of the Mortgaged Properties to another party
shall be permitted upon satisfaction of certain
specified conditions and so long as (a) prior to
any secondary market transaction, lender shall
have consented to such transfer, such consent not
to be unreasonably withheld or delayed, and (b)
after any secondary market transaction, Mortgagor
shall have delivered (or shall have caused to be
delivered) to lender written confirmation from
each of the rating agencies rating any securities
issued in connection with a secondary market
transaction that such transfer will not result in
a downgrade, withdrawal or qualification of any
such securities.
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Galileo NXL Retail The Mortgage Loan documents permit, without the
Portfolio 3 consent of the holder of the Mortgage, other
transfers and sales of all or any portion of the
Mortgaged Property and of interests in any or all
of the related Mortgagors upon satisfaction of
certain conditions set forth in the Mortgage Loan
documents.
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Kenwood Towne
Center 54. The Kenwood Loan Agreement
permits the sale or conveyance of the property
pursuant to the
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conditions set forth in section 5.2.12 of the
Kenwood Loan Agreement, which include, but are not
limited to the following: (i) the transferee is a
special purpose entity, (ii) prior to the sale of
conveyance, no Event of Default shall have
occurred and be continuing, (iii) Borrower shall
deliver a new nonconsolidation opinion, (iv) the
transferee executes an assumption of all the
obligations of Borrower under the Kenwood Loan
Agreement and shall deliver legal opinions and
title endorsements as requested by Lender.
The Kenwood Loan Agreement permits the transfer or
sale of controlling interests in Borrower to third
parties who satisfy the conditions set forth in
Section 5.2.12 of the Loan Agreement, which
include, but are not limited to the following: (i)
after giving effect to such transfer not less than
50% of the equity interests in Borrower are owned,
directly or indirectly, by a Permitted Owner (as
defined in the Kenwood Loan Agreement), (ii) prior
to the sale of conveyance, no Event of Default
shall have occurred and be continuing and (iii)
Borrower shall deliver a new nonconsolidation
opinion.
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Sprint Data Center The Mortgage Loan documents permit transfers of
interests in the Mortgagor in connection with,
among other things, (a) any issuance, sale or
transfer of interests in Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation,
or any successor entity resulting from any merger
permitted under the Mortgage Loan documents, or
(b) the merger of Inland Western Retail Real
Estate Trust, Inc. with any of the following
entities: Inland Retail Real Estate Trust, Inc., a
Maryland corporation; Inland Real Estate
Corporation, a Maryland corporation; Inland Real
Estate Investment Corporation, a Delaware
corporation; Inland American Real Estate Trust,
Inc., a Maryland corporation; any other real
estate investment trust sponsored by Inland Real
Estate Investment Corporation, or any other entity
composed entirely of any of the foregoing;
provided, however, (i) lender shall receive not
less than thirty (30) days prior written notice of
any such proposed merger, (ii) the net worth of
the entity surviving such merger shall equal or
exceed the net worth of the Inland Western Retail
Real Estate Trust, Inc. immediately prior to such
merger, and (iii) immediately following such
merger, the entity surviving the merger shall be
publicly traded.
On and after the date that is twelve (12) months
following the origination of the Mortgage Loan,
Mortgagor shall not withhold its consent to a
transfer of the Mortgaged Property provided that,
among other things, (a) the transferee of the
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Mortgaged Property shall be a Single Purpose
Entity (as defined in the Mortgage Loan
documents), (b) if requested by lender, receipt of
confirmation from each Rating Agency that such
proposed transfer will not result in a
downgrading, withdrawal or qualification of the
then current rating of any of the securities
issued pursuant to a securitization of the
Mortgage Loan, (c) no event of default shall have
occurred and be continuing, (d) if Inland Pacific
Property Services, LLC, a Delaware limited
liability company, does not act as the property
manager of the Mortgaged Property, then the
property manager of the Mortgaged Property must be
a Qualifying Manager (as defined in the Mortgage
Loan documents).
1. On and after the date that is
twelve (12) months following the origination of
the Mortgage Loan, Mortgagor shall not withhold
its consent to, and shall not charge an assumption
fee in connection with, (a) a transfer of up to,
in the aggregate, forty-nine percent (49%) of the
direct or indirect ownership interests in
Mortgagor, or (b) a transfer of greater than
forty-nine percent (49%) of the direct or indirect
ownership interest in Mortgagor, provided that,
among other things, such transfer is to an entity
(i) with a net worth of $200,000,000 or more, (ii)
with sufficient experience (determined by lender
in its reasonable discretion) in the ownership and
management of properties similar to the Mortgaged
Property, and (iii) which owns or manages office
properties containing at least 1,000,000 square
feet of gross leasable area.
Mortgagor, without the consent of lender, may
grant easements, restrictions, covenants,
reservations and rights of way in the ordinary
course of business for access, parking, water and
sewer lines, telephone and telegraph lines,
electric lines and other utilities or for other
similar purposes, provided that no transfer,
conveyance or encumbrance shall materially impair
the utility and operation of the Mortgaged
Property or materially adversely affect the value
of the Mortgaged Property or the net operating
income of the Mortgaged Property.
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Plaza at The loan documents permit certain transfers to
Hurstbourne tenants in common provided each tenant in common
executes the lender's assumption agreement and the
related principal executes the lender's form of
indemnity for the acts of such tenant in common.
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Representation #35-Single Purpose Entity
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Hilton Garden Inn- The mortgagor is an SPE but owned and sold a
Oxnard property prior to acquiring the mortgaged
property.
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Sprint Data Center The Mortgage Loan documents do not specifically
require Mortgagor to maintain its own records and
books and accounts separate and apart from any
other person. However, the Mortgage Loan documents
do require, among other things, Mortgagor to
maintain its balance sheets, operating statements
and other entity documents separate from any other
person and do not permit Mortgagor's assets to be
listed as assets on the financial statement of any
other entity except as required or permitted by
applicable accounting principles acceptable to
lender, consistently applied; provided, however,
that (i) any such consolidated financial statement
shall contain a note indicating that it maintains
separate balance sheets and operating statements
for the Mortgagor and the Mortgaged Property, or
(ii) if such person is controlled by Inland
Western Retail Real Estate Trust, Inc., then such
person may be included in the consolidated
financial statement of Inland Western Retail Real
Estate Trust, Inc., provided such consolidated
financial statement contains a note indicating
that it maintains separate financial records for
each person controlled by Inland Western Retail
Real Estate Trust, Inc.
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Representation #36-Whole Loan
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
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119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
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Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
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Representation #37-Tax Parcels
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Desert Xxxx The mortgaged property constitutes more than one
tax lot. The mortgagor is obligated under the loan
documents to obtain a separate tax lot
identification number for the mortgaged property.
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Galileo NXL Retail At the Fashion Corner property, the ground lease
Portfolio 3 for the parking does not have a separate tax lot.
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Representation #39-Security Interests
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The Mortgage Loan that will be included in the
trust is, together with another mortgage loan also
included in the trust with which it is pari passu
in right of payment, a senior loan in a multiple
loan structure comprised of multiple mortgage
loans, all of which (whether or not included in
the trust) are secured by the same mortgage
instrument and are cross-defaulted.
The security interests created by the related UCC
financing statement are for the benefit of the
holder of the Mortgage Loan that will be included
in the trust and the holders of the mortgage loans
that will not be included in the trust.
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119 North 4th The Mortgage Loan that will be included in the
Street trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
The security interests created by the related UCC
financing statement are for the benefit of the
holder of the Mortgage Loan that will be included
in the trust and the holders of the mortgage loans
that will not be included in the trust.
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Kenwood Towne The Mortgage Loan that will be included in the
Center trust is a senior loan in a multiple loan
structure comprised of two mortgage loans, each of
which (whether or not included in the trust) is
secured by the same mortgage instrument and is
cross-defaulted with the other.
The security interests created by the related UCC
financing statement are for the benefit of the
holder of the Mortgage Loan that will be included
in the trust and the holders of the mortgage loans
that will not be included in the trust.
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Representation #43-Recourse
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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00 Xxxxx Xxxxxx The environmental indemnity was only executed by
the mortgagor and it does not cover waste.
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Crestview The related Mortgage Loan documents provide for
Apartments, recourse for damages, liabilities, expenses or
Regency claims in connection with the Borrower's
Apartments, Hilton intentional misconduct or gross negligence with
Garden Inn- respect to waste.
Oxnard, Victory
Plaza, 17525
Ventura Blvd, Xx
Xxxxx Xxxxx, 0000
Xxxxxxxx Xxxx
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Ashford Pool 2, Limitations on recourse against Mortgagor
Ashford Pool 3 contained in the Mortgage Loan documents shall not
(a) impair the right of lender to bring suit for
and recover against any person any damages,
losses, expenses, liabilities or costs resulting
from fraud, willful misrepresentation, waste of
all or any portion of any Mortgaged Property, or
wrongful removal or disposal of all or any portion
of any Mortgaged Property by any person in
connection with the Mortgage Loan documents, (b)
impair the right of lender to bring suit for and
recover against any person with respect to any
misappropriation of security deposits or rents
collected more than one (1) month in advance and
(c) impair the right of lender to obtain insurance
proceeds or condemnation proceeds due to lender
pursuant to the Mortgage Loan documents.
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Sprint Data Center The Mortgage Loan documents provide for recourse
against the Mortgagor for damages, liabilities,
expenses or claims sustained by lender in
connection with, among other things, Mortgagor's
material physical waste of the Mortgaged Property.
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Plaza at The mortgagor is 26 tenants in common. With
Hurstbourne respect to the environmental indemnity, the
principal of each tenant in common, along with the
principal of the sponsor, has executed a standard
environmental indemnity covering the acts of all
tenants in common. With respect to the guaranty of
recourse carve-outs only, the principal of the
sponsor has executed a guaranty for standard
recourse carve-outs of all tenants in common. The
principals of each tenant in common have executed
such guaranties with respect to the actions of
themselves and their related tenant in common
entity only.
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Representation #47- Operating Statements
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LOAN
NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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Crestview The related Mortgage Loan documents require annual
Apartments, operating statements and rent roll "and such other
Regency information as may be requested."
Apartments, Hilton
Garden Inn-Oxnard
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ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
None.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES FOR THE 1995-C2 MORTGAGE LOANS
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the acquisition of the related Mortgage Loan by the Seller.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in March 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
March 2006, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or encumbrances
that are pari passu with the lien of such Mortgage, in any event subject,
however, to the following (collectively, the "Permitted Encumbrances"): (a) the
lien for current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and
other matters that are of public record and/or are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy or a "marked-up" commitment binding upon the title insurer);
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment binding upon the title insurer); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Crossed Group; and (g) if the related Mortgaged Property consists of
one or more units in a condominium, the related condominium declaration. The
Permitted Encumbrances do not, individually or in the aggregate, materially
interfere with the security intended to be provided by the related Mortgage, the
current principal use of the related Mortgaged Property, the Value of the
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan. The related assignment
of such Mortgage executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and constitutes
a legal, valid, binding and, subject to the limitations and exceptions set forth
in representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default beyond applicable notice and grace periods. No person other
than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been
impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part. With respect to each Mortgage Loan, since the later
of (a) March 6, 2006 and (b) the closing date of such Mortgage Loan, the Seller
has not executed any written instrument that (i) impaired, satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified or altered
any material term of such Mortgage Loan, (iii) released the Mortgaged Property
or any material portion thereof from the lien of the related Mortgage, or (iv)
released the related Mortgagor from its obligations under such Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding sentence does not
relate to any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. The related Mortgaged
Property is, to the Seller's actual knowledge, in good repair and free and clear
of any damage that would materially and adversely affect its value as security
for such Mortgage Loan (except in any such case where an escrow of funds, letter
of credit or insurance coverage exists sufficient to effect the necessary
repairs and maintenance). As of the date of acquisition of the Mortgage Loan,
there was no proceeding pending for the condemnation of all or any material part
of the related Mortgaged Property. As of the Closing Date, the Seller has not
received notice and has no actual knowledge of any proceeding pending for the
condemnation of all or any material portion of the Mortgaged Property securing
any Mortgage Loan. As of the date of acquisition of each Mortgage Loan and, to
the Seller's actual knowledge, as of the date hereof, (a) none of the material
improvements on the related Mortgaged Property encroach upon the boundaries and,
to the extent in effect at the time of construction, do not encroach upon the
building restriction lines of such property, and none of the material
improvements on the related Mortgaged Property encroached over any easements,
except, in each case, for encroachments that are insured against by the lender's
title insurance policy referred to in representation 8 below or that do not
materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) inures to the benefit of the Trustee as sole insured
without the consent of or notice to the insurer. Such Title Policy contains no
exclusion for whether, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available) that, (a) the related Mortgaged Property has access to a public road,
and (b) the area shown on the survey, if any, reviewed or prepared in connection
with the acquisition of the related Mortgage Loan is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the acquisition of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen meeting ASTM standards or an update of a previously conducted
environmental site assessment (which update may have been performed pursuant to
a database update), was performed by an independent third-party environmental
consultant (licensed to the extent required by applicable state law) with
respect to each Mortgaged Property securing a Mortgage Loan in connection with
the acquisition of such Mortgage Loan, (b) the report of each such assessment,
update or screen, if any (an "Environmental Report"), is dated no earlier than
(or, alternatively, has been updated
within) twelve (12) months prior to the date hereof, (c) a copy of each such
Environmental Report has been delivered to the Purchaser, and (d) either: (i) no
such Environmental Report, if any, reveals that as of the date of the report
there is a material violation of applicable environmental laws with respect to
any known circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property and
the same have not been subsequently remediated in all material respects, then
one or more of the following are true--(A) one or more parties not related to
the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of acquisition of the related Mortgage Loan, the Seller had no actual
knowledge that such responsible party did not have financial resources that were
adequate to cure the subject violation in all material respects. To the Seller's
actual knowledge and without inquiry beyond the related Environmental Report,
there are no significant or material circumstances or conditions with respect to
such Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Mortgagor questionnaire delivered to the Seller in
connection with the issue of any related environmental insurance policy, if
applicable, that would require investigation or remediation by the related
Mortgagor under, or otherwise be a material violation of, any applicable
environmental law. The Mortgage Loan documents for each Mortgage Loan require
the related Mortgagor to comply in all material respects with all applicable
federal, state and local environmental laws and regulations. Each Mortgagor
represents and warrants in the related Mortgage Loan documents that, except as
set forth in certain environmental reports and to its knowledge, it has not
used, caused or permitted to exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous materials in any manner which
violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or one form of action law or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying applicable
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i) and (ii)) such limitations or unenforceability will not render such
loan documents invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the acquisition of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement basis, (2) the outstanding principal balance of such
Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable federal flood insurance program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology
acceptable to a reasonably prudent commercial mortgage lender with respect to
similar properties in the same area or earthquake zone. Each Mortgaged Property
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas is insured by
windstorm insurance in an amount at least equal to the lesser of (i) the
outstanding principal balance of the related Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located on such Mortgaged
Property (less physical depreciation). All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without at least ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage Loan documents require that the related Mortgagor or a tenant of such
Mortgagor maintain insurance as described above or permit the related mortgagee
to require insurance as described above. Except under circumstances that would
be reasonably acceptable to a prudent commercial mortgage lender or that would
not otherwise materially and adversely affect the security intended to be
provided by the related Mortgage, the Mortgage Loan documents for each Mortgage
Loan provide that proceeds paid under any such casualty insurance policy will
(or, at the lender's option, will) be applied either to the repair or
restoration of all or part of the related Mortgaged Property or to the payment
of amounts due under such Mortgage Loan; provided that the related Mortgage Loan
documents may entitle the related Mortgagor to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further, that, if
the related Mortgagor holds a leasehold interest in the related Mortgaged
Property, the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. The Seller has no actual knowledge
that any Mortgagor under a Mortgage Loan is a debtor in any state or federal
bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's actual knowledge,
based upon a letter from governmental authorities, a legal opinion, a zoning
consultant's report or an endorsement to the related Title Policy, or based on
such other due diligence considered reasonable by prudent commercial mortgage
lenders in the lending area where the subject Mortgaged Property is located
(including, without limitation, when commercially reasonable, a
representation of the related Mortgagor at the time of acquisition of the
subject Mortgage Loan), the improvements located on or forming part of each
Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect the Value of the related
Mortgaged Property). In the case of each legal non-conforming use or structure,
the related Mortgaged Property may be restored or repaired to the full extent of
the use or structure at the time of such casualty or law and ordinance coverage
has been obtained in an amount that would be required by prudent commercial
mortgage lenders (or, if the related Mortgaged Property may not be restored or
repaired to the full extent of the use or structure at the time of such casualty
and law and ordinance coverage has not been obtained in an amount that would be
required by prudent commercial mortgage lenders, such fact does not materially
and adversely affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's actual knowledge, no material default has occurred under such
Ground Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such Ground
Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the
payment of the outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the acquisition of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section
1.860G-2(a) (but without regard to the rule in Treasury Regulations Section
1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage under certain circumstances). Each Mortgage Loan is directly
secured by an interest in real property (within the meaning of Treasury
Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair market
value of the interest in real property which secures such Mortgage Loan was at
least equal to 80% of the principal amount of such Mortgage Loan at the time the
Mortgage Loan was (a) originated or modified (within the meaning of Treasury
Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust Fund, or (2)
substantially all of the proceeds of such Mortgage Loan were used to acquire,
improve or protect an interest in real property and such interest in real
property was the only security for the Mortgage Loan at the time such Mortgage
Loan was originated or modified. For purposes of the previous sentence, the fair
market value of the referenced interest in real property shall first be reduced
by (1) the amount of any lien on such interest in real property that is senior
to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, the
Seller has not advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than amounts paid by the tenant as specifically provided under a
related lease or by the property manager), for the payment of any amount
required by such Mortgage Loan.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest.
22. Legal Proceedings. To the Seller's actual knowledge, there
are no pending actions, suits, proceedings or governmental investigations by or
before any court or governmental authority against or affecting the Mortgagor
under any Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property as security for such
Mortgage Loan or the current ability of the Mortgagor to pay principal, interest
or any other amounts due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's actual knowledge, except for
cases involving other Mortgage Loans, none of the Mortgaged Properties securing
the Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage.
24. No Mechanics' Liens. As of the Closing Date, to the Seller's
actual knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's actual knowledge, as
of the date of acquisition of each Mortgage Loan and based on any of: (i) a
letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement
to the related Title Policy, (iv) a representation of the related Mortgagor at
the time of acquisition of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the acquisition of
comparable mortgage loans, the related Mortgagor, the related lessee, franchisee
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon
payment in full of all amounts due under the related Mortgage Loan; provided
that the Mortgage Loans that are Crossed Loans, and the other individual
Mortgage Loans secured by multiple parcels, may require the respective
mortgagee(s) to grant releases of portions of the related Mortgaged Property or
the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance and Assumption Costs. If any Mortgage Loan
permits assumptions, then the related Mortgage Loan documents provide that the
related Mortgagor is responsible for all reasonable costs and expenses
associated with an assumption incurred by the related mortgagee.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except for the imposition of a default rate.
31. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
32. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
33. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
34. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
35. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
36. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases
and security interests to secure revolving lines of credit and similar
financing; and (b) one or more UCC financing statements covering such personal
property have been filed and/or recorded (or have been sent for filing or
recording or submitted for filing and/or recording to a title company pursuant
to escrow instructions) wherever necessary to perfect under applicable law such
security interests (to the extent a security interest in such personal property
can be perfected by the filing or recording of a UCC financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Seller) executed and delivered in favor of the Trustee
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in representation 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee. Notwithstanding any of the foregoing, no representation
is made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing or recording of UCC Financing Statements are required in order
to effect such perfection.
37. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
38. Commencement of Amortization. Unless such Mortgage Loan
provides for interest-only payments prior to its Stated Maturity Date, each
Mortgage Loan begins to amortize prior to its Stated Maturity Date.
39. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
40. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards.
41. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
42. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
(identified on Annex D) that consists of a leasehold estate that is not a
material ground lease, which ground lease is not the subject of representation
18.
43. Escrows. The remaining balances of any escrow deposits are
in the possession or under the control of the servicer of the Mortgage Loans.
44. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with annual financial statements and rent rolls (if there is
more than one tenant) for the related Mortgaged Property.
45. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
46. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the acquisition of any Mortgage Loan.
47. Servicing. Following the acquisition of the Mortgage Loans
by the Seller, the servicing and collection practices used with respect to each
Mortgage Loan in all material respects have met customary standards utilized by
prudent commercial mortgage loan servicers with respect to whole loans.
48. Appraisal. In connection with its acquisition of each
Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
ANNEX A (TO SCHEDULE II)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
FOR THE 1995-C2 LOANS
Representation #12-Environmental Conditions
--------------------------------------------------------------------------------
LOAN LOAN NAME DESCRIPTION OF EXCEPTION
NUMBER
--------------------------------------------------------------------------------
The Bluffs of Burnsville There is no specific language in
Canton Corners Shopping Center relation to compliance to
Edmonds Professional Center Environmental Laws and regulations.
Glendale K Mart There are provisions confirming no
Harborside Apartments existing hazardous materials.
Kennestone Professional Building
Medical Specialties Building
Mesa K Mart
Settlement Apartments.
--------------------------------------------------------------------------------
Representation #14-Insurance
--------------------------------------------------------------------------------
LOAN LOAN NAME DESCRIPTION OF EXCEPTION
NUMBER
--------------------------------------------------------------------------------
The Bluffs of Burnsville The Mortgage Loans do not have
Edmonds Professional Center terrorism coverage.
Glendale K Mart
Harborside Apartments
Mesa K Mart
--------------------------------------------------------------------------------
Representation #23-Other Mortgage Liens
--------------------------------------------------------------------------------
LOAN LOAN NAME DESCRIPTION OF EXCEPTION
NUMBER
--------------------------------------------------------------------------------
The Bluffs of Burnsville The Mortgage Loans prohibit the
Canton Corners Shopping Center Mortgaged Property to be encumbered
Glendale K Mart by any mortgage lien junior to or of
Kennestone Professional Building equal priority without the lender's
Medical Specialties Building prior consent.
Mesa K Mart
Settlement Apartments
Xxxxxx Business Center.
--------------------------------------------------------------------------------
Harborside Apartments The Mortgage Loans prohibit the
Mortgaged Property to be encumbered
by any mortgage
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
lien junior to or of equal priority
without the lender's prior consent.
There appears to be existing
subordinate lien : i) Mortgage from
Inland Harbor Side Limited
Partnership to Inland Real Estate
Corporation to secure the originally
stated indebtedness of $3,452,200
and any other amount payable under
the terms dated September 1, 1985
and recorded September 5, 1985 on
Reel 1790, Image 1513 as Document
No. 5842165.
--------------------------------------------------------------------------------
Edmonds Professional Center The Mortgage Loans prohibit the
Mortgaged Property to be encumbered
by any mortgage lien junior to or of
equal priority without the lender's
prior consent.
There appears to be existing
subordinate liens :
i) Deed of Trust between Xxxx T,.
Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, Pacific Northwest title
Company of Snohomish County and
Cascade Bank dated December 12,
2002, recording no. 200212160360;
and
ii) Deed of Trust between Edmonds
Professional Center and Pacific
Northwest Title Company of Snohomish
County and Cascade Bank dated August
26, 2005, recording no.
200508260706.
--------------------------------------------------------------------------------
Representation #39-Security Interests
--------------------------------------------------------------------------------
LOAN LOAN NAME DESCRIPTION OF EXCEPTION
NUMBER
--------------------------------------------------------------------------------
Kennestone Professional Building The Mortgage Loan specifically
excludes the borrower's medical
practice including any personal
property or fixtures used in
connection with the medical practice
conducted on the mortgaged premises,
from being a security interest or
encumbrance on the loan.
--------------------------------------------------------------------------------
Representation #40-Recourse
--------------------------------------------------------------------------------
LOAN LOAN NAME DESCRIPTION OF EXCEPTION
NUMBER
--------------------------------------------------------------------------------
The Bluffs of Burnsville, The recourse provision in the
Harborside Apartments. Mortgage does not contain the word
"waste".
--------------------------------------------------------------------------------
Edmonds Professional Center, There are no recourse provisions
Medical Specialties Building contained in the Mortgage
--------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE II)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE II)
[RESERVED]
ANNEX D (TO SCHEDULE II)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 42)
Canton Corners Shopping Center.
SCHEDULE III
MORTGAGE LOAN SCHEDULE
[Attached]
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE
------ ------------- ---------- ----
1 Galileo NXL Retail Portfolio 3 MLML Retail
1.01 San Dimas Plaza MLML Retail
1.02 The Crossing at Fry Road MLML Retail
1.03 Xxxxx Xxxx MLML Retail
1.04 Fashion Corner MLML Retail
1.05 Bristol Plaza MLML Retail
1.06 Xxxxx Plaza MLML Retail
1.07 XxXxxxxx Plaza MLML Retail
1.08 Green River Plaza MLML Retail
1.09 Stratford Commons MLML Retail
1.10 Hunting Hills MLML Retail
1.11 Tomball Parkway Plaza MLML Retail
1.12 Wisteria Village MLML Retail
1.13 Paradise Plaza MLML Retail
1.14 Kmart Plaza MLML Retail
1.15 Packard Plaza MLML Retail
1.16 Northside Plaza MLML Retail
1.17 Xxxxxxxxxx Xxxx XXXX Xxxxxx
0 Xxxxxxx Xxxxx Xxxxxx MLML Retail
3 00 Xxxxx Xxxxxx XXXX Xxxxxx
0 Xxxxxxx Hotel Portfolio 2 MLML Hospitality
4.01 Courtyard Xxxxxx Airport MLML Hospitality
4.02 Radisson Indianapolis Downtown MLML Hospitality
4.03 Embassy Suites Palm Beach MLML Hospitality
4.04 Hilton St. Petersburg MLML Hospitality
4.05 Hilton Nassau - Houston MLML Hospitality
5 Ashford Hotel Portfolio 3 MLML Hospitality
5.01 Crowne Plaza Xxxxxxx Hills MLML Hospitality
5.02 Radisson Fort Worth MLML Hospitality
5.03 SpringHill Suites Gaithersburg MLML Hospitality
5.04 Courtyard Fort Lauderdale MLML Hospitality
5.05 SpringHill Suites Centreville MLML Hospitality
9 Sprint Data Center MLML Industrial
00 Xxxx Xxxxxxxxxxx Xxxxxx XXXX Xxxxxx
00 Xxxxx Xxxxxxxx Xxxxx XXXX Xxxxxx
00 Xxxxxxx Xxxxxx MLML Retail
21 La Crosse Industrial MLML Industrial
22 Kahana Gateway Professional Center - Retail MLML Retail
23 Villages at Paseo del Sol MLML Retail
25 Village Faire Shopping Center MLML Retail
28 University Collection Shopping Center MLML Retail
29 Lakeshore Apartments MLML Multifamily
31 Brookhollow Shopping Center MLML Retail
32 La Reina Plaza MLML Retail
33 Army Corp Engineer Building MLML Office
35 Plaza at Hurstbourne Green MLML Office
38 Trappe Shopping Center MLML Retail
40 Encino Valley Shopping Center MLML Retail
00 Xxxxxx Xxxxxx Xxx - Xxxxxx XXXX Hospitality
43 Cranberry Plaza MLML Industrial
44 GN Resound MLML Industrial
47 XxXxxx Lakes Apartments MLML Multifamily
48 New City Office MLML Office
54 6221 Wilshire Boulevard MLML Office
56 Desert Xxxx Shopping Center MLML Retail
00 Xxxxxxx Xxxxx XXXX Xxxxxx
00 Xxxxxxxxx Xxxxxxx MLML Manufactured Housing
59 Trainers Station Shopping Center MLML Retail
60 Porterwood Shopping Center MLML Retail
62 Virginia Eye Development MLML Office
63 Quail Creek Apartments MLML Multifamily
64 Danovitz Portfolio MLML Various
64.01 00 Xxxx Xxxx XXXX Xxxxxx
00.00 Xxxxxxx Xxxx Xxxxxxxxxxxx Xxxxxx XXXX Xxxxxx
64.03 000 Xxxx Xxxx XXXX Industrial
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX Multifamily
69 Battlefield Park MLML Multifamily
76 Garden Office Park MLML Office
77 PCG Corporate Center MLML Xxxxxx
00 000 Xxxxx 0xx Xxxxxx XXXX Mixed Use
00 Xxxxxxx Xxxxxx XXXX Xxxxxx
00 Xxxxxx Xxxxxxx Professional Center - Office MLML Xxxxxx
00 00000 Xxxxxxx Xxxx XXXX Xxxxxx
93 135 West 27th Street Commercial Corp MLML Office
97 Xxxxxxxx Apartments MLML Multifamily
98 Mesa K-Mart (95) MLML Retail
000 Xxxxxxxx Xxxxx (95) MLML Retail
103 Walgreen's - Chula Vista MLML Retail
000 Xxxxxxxx Xxxxxx XXXX Xxxxxx
108 Brookhurst Plaza MLML Retail
000 Xxxxxxxxx Xxxxxxxxxx XXXX Multifamily
000 Xxxxxxx Xxxxx Marketplace MLML Retail
121 Sunnyside Town Center MLML Retail
122 Walgreen's Fremont MLML Retail
000 Xxxxxx Xxxxxxxx Xxxxxx (95) MLML Industrial
125 Canton Corners Shopping Center (95) MLML Retail
127 Xxxx X. Xxxx Realty MLML Office
130 Dublin Corners MLML Retail
131 Super K-Mart Center (95) MLML Retail
000 Xxx Xxxxxx Xx Xxxxxxxxxx (95) MLML Multifamily
139 Settlement Apartments (95) MLML Multifamily
140 Cypresswood Center MLML Retail
142 Medical Specialties Center (95) MLML Office
143 Harbor Side Apartments (95) MLML Multifamily
146 Regency Apartments MLML Multifamily
147 Kennestone Professional Xxxx. (00) MLML Office
150 Xxxxxxx Professional Center (95) MLML Office
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
LOAN # STREET ADDRESS CITY
------ -------------- ----
1 Various Various
1.01 853-1073 West Arrow Highway San Dimas
1.02 0000 Xxx Xxxx Katy
1.03 0000-0000 Xxxxx Xxxx Xxxxxxxxxxxx
1.04 0000-0000 Xxx Xxxx Saginaw
1.05 0000 Xxxxxx Xxxx Xxxxxxx
1.06 00000 XX 0000 Xxxx Xxxxxxx
1.07 0000 Xxxxx XxXxxxxx Xxxxxxx Hamburg
1.08 399 Campbellsville By Pass Campbellsville
1.09 000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxx-Xxxxx
1.10 0000 Xxxxxxxx Xxxx Xxxxxxxxx Roanoke
1.11 00000 Xxxxxxx Xxxxxxx Tomball
1.12 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx
1.13 0000 Xxxxx Xxxx Paradise
1.14 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx
1.15 0000 Xxxxx Xxxxxxx Xxxxxx Cudahy
1.16 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
1.17 0000 XX Xxxxxxx 00 Xxxxxx
2 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx
3 60 State Street Boston
4 Various Various
4.01 0000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx
4.02 00 Xxxx Xxxx Xxxxxx Indianapolis
4.03 0000 XXX Xxxxxxxxx Xxxx Xxxxx Xxxxxxx
4.04 000 Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
4.05 0000 Xxxx Xxxx One Houston
5 Various Various
5.01 0000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxxxx
5.02 000 Xxxx Xxxxxx Xxxx Xxxxx
5.03 0000 Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
5.04 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
5.05 0000 Xxxxxxx Xxxxxxx Centreville
9 0000 Xxxxx Xxxxxx Xxxxx Xxxxx
12 13802 North Scottsdale Road Scottsdale
16 0000 Xxxxx Xxxxxxxx Xxxxxx Reno
17 0000 Xxxxxxx Xxxxxx Reno
21 0000 Xxxxx Xxxxx Xxxxxx LaCrosse
22 4405 Honoapiilani Highway Lahaina
23 32120, 32140, 32170, 32180, 32200, 32220 & 00000 Xxxxxxx 00 Xxxxx Xxxxxxxx
00 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxx
28 0000-0000 Xxxx Xxxxxx Xxxxxx Tampa
29 000 Xxxxxxx Xxxxxx Evansville
31 14526-15164 San Xxxxx Avenue San Antonio
32 14622 Ventura Boulevard Xxxxxxx Oaks
33 0000 Xxxx Xxxxxx Xxxxxxxxx
35 3220 Office Pointe Place and 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
38 000 Xxxx Xxxx Xxxxxx Trappe
40 17919-17977 Ventura Boulevard Encino
41 2000 Solar Drive Xxxxxx
00 0 Xxxxxxxxx Xxxx Parsippany
44 0000 Xxxx Xxxxxxxxxxx Xxxxxxx Bloomington
47 000 Xxxx Xxxx Xxxx Xxxx Xxxxxxxxxx
48 00 Xxxxxxxx Xxxxxxxxx Xxx Xxxx
54 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
56 0000 Xxxx Xxxx Xxxx Xxxxxxxx
57 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
58 1701 Xxxxxxxxx 0xx Xxxxxx Xxxxxxxxx Xxxxx
59 00-00 Xxxxx Xxxx Xxx Xxxxxxxxx Xxxxxxxxxx
60 23741 XX-00 Xxxxx Xxxxxx
00 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx
63 0000 Xxxx Xxxx Xxxx Xxxxxxxxxxx
64 Various Various
64.01 00 Xxxx Xxxx Xxxxxxxxxx
64.02 00000 Xxxxxxxxxx Xxxx Pittsburgh
64.03 000 Xxxx Xxxx Xxxxxxxxxxx
65 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxx
69 3020 South Sagamont Springfield
76 1300 & 0000 Xxxxxxxx Xxxx Xxxx Xxxxxxx
77 0000 Xxxxxxxxx Xxxxxxx Xxxxxx Portland
78 000 Xxxxx 0xx Xxxxxx Minneapolis
80 0000-00 Xxxxx Xxx Xxxx Xxxxxxxxx and 00000-000 Xxxx Xxxxxxx Xxx Van Nuys
82 00 Xxxxxx Xxxx Lahaina
84 00000 Xxxxxxx Xxxxxxxxx Encino
93 000 Xxxx 00xx Xxxxxx Xxx Xxxx
97 000 Xxxx 00xx Xxxxxx Xxx Xxxx
98 0000 Xxxxx Xxxxx Xxxx Xxxx
101 0000 Xxxx Xxxx Xxxx Xxxxxxxx
103 0000 0xx Xxxxxx Xxxxx Xxxxx
105 135 and 000 Xxx Xxxx Xxxxxxxxx
108 14092-14114 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxx
000 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
000 00000 Xxxxxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxx
000 10201-10225 Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxx
000 0000 Xxxx 00xx Xxxxxx Xxxxxxx
123 0000 Xxxx Xxxxxx Xxxxxx; 21720, 21730, 21818 & 00000 Xxxxx Xxxxxxxxxx Xxxxxx; 0000 Xxxx 00xx Xxxxxx
Xxxxxx; 00000 Xxxxxxxxxx Xxxxxx; 00000 Xxxxxx Xxxx Xxxx & 00000 Xxxxxx Xxx
125 0000 Xxxxxxxx Xxxxxxx Xxxxxx
127 2600 Immokalee Road Naples
130 4520, 4524, 0000 Xxxxxx Xxxxxxxxx Xxxxxx
000 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
135 0000 Xxxxxxx Xxxxx Xxxxxxxxxx
139 0000 000xx Xxxxxx Xxxxxxxxx Xxxxxxx
140 17500-17520 Kuykendahl Road Spring
142 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
143 0000 Xxxxx Xxxxxxxx Xxxxxx Milwaukee
146 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx
147 0000 Xxxxx Xxxx Xxxx Marietta
150 0000 000xx Xxxxxx Xxxxxxxxx Xxxxxxx
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
CUT-OFF DATE ORIGINAL IO MONTHLY
LOAN # COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($) DEBT SERVICE ($)
------ ------ ----- -------- ------------ ------------ ----------------
1 Various Various Various 173,000,000 173,000,000 752,770.25
1.01 Xxx Xxxxxxx XX 00000 23,028,042 23,028,042
1.02 Xxxxxx XX 00000 18,481,104 18,481,104
1.03 Xxxxxxxx XX 00000 17,289,366 17,289,366
1.04 Xxxxxxx XX 00000 14,667,543 14,667,543
1.05 Xxxxx XX 00000 13,200,788 13,200,788
1.06 Xxxxxx XX 00000 9,973,929 9,973,929
1.07 Xxxx XX 00000 9,313,890 9,313,890
1.08 Xxxxxx XX 00000 9,240,552 9,240,552
1.09 Xxxxxxx XX 00000 8,235,825 8,235,825
1.10 Xxxxxxx XX 00000 8,213,824 8,213,824
1.11 Xxxxxx XX 00000 7,773,798 7,773,798
1.12 Xxxxxxxx XX 00000 7,700,460 7,700,460
1.13 Xxxxx XX 00000 7,363,106 7,363,106
1.14 Xxxxxx XX 00000 6,673,732 6,673,732
1.15 Xxxxxxxxx XX 00000 4,766,951 4,766,951
1.16 Xxxxxxxxx XX 00000 4,510,269 4,510,269
1.17 Xxxxx Xxxxxxxx XX 00000 2,566,820 2,566,820
2 Xxxxxxxx XX 00000 146,493,391 147,000,000
3 Xxxxxxx XX 00000 65,000,000 65,000,000 604,548.14
4 Various Various Various 115,645,000 115,645,000 540,391.15
4.01 Xxxxxxxxx XX 00000 32,477,154 32,477,154
4.02 Xxxxxx XX 00000 27,576,322 27,576,322
4.03 Xxxx Xxxxx XX 00000 19,310,740 19,310,740
4.04 Xxxxxxxx XX 00000 19,091,300 19,091,300
4.05 Xxxxxx XX 00000 17,189,485 17,189,485
5 Various Various Various 95,905,000 95,905,000 448,149.19
5.01 Xxx Xxxxxxx XX 00000 32,837,331 32,837,331
5.02 Xxxxxxx XX 00000 22,224,798 22,224,798
5.03 Xxxxxxxxxx XX 00000 16,080,295 16,080,295
5.04 Xxxxxxx XX 00000 15,380,483 15,380,483
5.05 Xxxxxxx XX 00000 9,382,094 9,382,094
9 Xxxxx Xxxxx XX 00000 52,800,000 52,800,000 238,612.00
12 Xxxxxxxx XX 00000 33,400,000 33,400,000 147,956.97
16 Xxxxxx XX 00000 26,000,000 26,000,000 117,636.46
17 Xxxxxx XX 00000 24,000,000 24,000,000 111,527.78
21 XxXxxxxx XX 00000 18,935,829 19,000,000
22 Xxxx XX 00000 18,425,000 18,425,000 82,445.05
23 Xxxxxxxxx XX 00000 18,260,000 18,260,000 79,361.68
25 Xxx Xxxxx XX 00000 17,580,000 17,580,000 81,545.56
28 Xxxxxxxxxxxx XX 00000 16,100,000 16,100,000 81,087.54
29 Xxxxxxxxxxx XX 00000 15,600,000 15,600,000 73,811.11
31 Xxxxx XX 00000 14,700,000 14,700,000 71,043.19
32 Xxx Xxxxxxx XX 00000 14,600,000 14,600,000 68,869.92
33 Xxxxxx XX 00000 14,400,000 14,400,000 68,376.67
35 Xxxxxxxxx XX 00000 13,500,000 13,500,000 64,160.16
38 Xxxxxxxxxx XX 00000 13,200,000 13,200,000 62,065.21
40 Xxx Xxxxxxx XX 00000 13,100,000 13,100,000 62,004.54
41 Xxxxxxx XX 00000 12,960,238 13,000,000
43 Xxxxxx XX 00000 12,275,000 12,275,000 56,772.16
44 Xxxxxxxx XX 00000 12,275,000 12,275,000 61,418.47
47 Xxxxxx XX 00000 11,271,936 11,300,000
48 Xxxxxxxx XX 00000 10,937,069 11,000,000
54 Xxx Xxxxxxx XX 00000 9,600,000 9,600,000 44,700.33
56 Xxxxxxxx XX 00000 9,400,000 9,400,000 43,308.43
57 Xxx Xxxxxxx XX 00000 9,237,000 9,237,000 43,353.50
58 Xxxxxxx XX 00000 8,951,236 9,000,000
59 Xxxxx XX 00000 8,900,000 8,900,000 41,478.53
60 Xxxxxxxxxx XX 00000 8,526,000 8,526,000 40,016.45
00 Xxxxxxx Xxxxx XX 00000 8,300,000 8,300,000 40,140.88
63 Xxxxxx XX 00000 8,180,961 8,200,000
64 Allegheny PA Various 7,889,761 7,900,000
64.01 Xxxxxxxxx XX 00000 3,299,355 3,303,636
64.02 Xxxxxxxxx XX 00000 2,653,829 2,657,273
64.03 Xxxxxxxxx XX 00000 1,936,578 1,939,091
65 Xxxxxx XX 00000 7,873,028 7,900,000
69 Xxxxxx XX 00000 6,890,532 6,900,000
76 Xxxxxxxxxx XX 00000 6,385,699 6,400,000
77 Xxxxxxxxx XX 00000 6,385,167 6,400,000
78 Xxxxxxxx XX 00000 6,385,128 6,400,000
80 Xxx Xxxxxxx XX 00000 6,235,621 6,250,000
82 Xxxx XX 00000 6,150,000 6,150,000 27,446.23
84 Xxx Xxxxxxx XX 00000 6,050,000 6,050,000 28,252.31
93 Xxx Xxxx XX 00000 5,500,000 5,500,000
97 Xxx Xxxx XX 00000 5,100,000 5,100,000 22,958.50
98 Xxxxxxxx XX 00000 5,019,971 6,560,000
101 Xxxxxxxx XX 00000 4,966,525 6,450,000
103 Xxx Xxxxx XX 00000 4,788,172 4,800,000
105 Xxxx XX 00000 4,600,000 4,600,000
108 Xxxxxx XX 00000 4,190,000 4,190,000 21,212.65
000 Xxxxxxxxx XX 00000 3,780,000 3,780,000 17,294.16
000 Xxxx XX 00000 3,740,850 3,750,000
121 Xxxxxxxxx XX 00000 3,300,000 3,300,000 15,176.14
000 Xxxxx XX 00000 3,294,525 3,300,000
123 Xxx Xxxxxxx XX 00000 3,159,531 8,000,000
125 Xxxxxxxx XX 00000 2,982,134 5,910,143
127 Xxxxxxx XX 00000 2,874,005 2,880,000
000 Xxxxxxx XX 00000 2,600,000 2,600,000 12,673.10
000 Xxxxxxxx XX 00000 2,480,161 3,270,000
135 Xxxxxx XX 00000 1,997,040 2,475,060
139 Xxxxxxxxx XX 00000 1,929,651 4,400,000
000 Xxxxxx XX 00000 1,860,000 1,860,000
142 Xxxxxxx XX 00000 1,814,511 3,100,000
143 Xxxxxxxxx XX 00000 1,743,601 2,979,546
000 Xxxxxxxxx XX 00000 1,674,000 1,674,000 7,658.84
000 Xxxx XX 00000 1,499,589 3,829,090
150 Xxxxxxxxx XX 00000 1,219,594 5,300,000
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
IO ANNUAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST PRIMARY
LOAN # DEBT SERVICE ($) SERVICE ($) SERVICE ($) RATE % SERVICING FEE
------ ----------------- ----------- ----------- ------ -------------
1 9,033,243.06 5.1500 0.0100
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
2 812,039.18 9,744,470.16 5.25519 0.01000
3 7,254,577.78 5.5040 0.0100
4 6,484,693.79 712,276.34 8,547,316.08 5.5306 0.0100
4.01
4.02
4.03
4.04
4.05
5 5,377,790.29 590,694.48 7,088,333.76 5.5306 0.0100
5.01
5.02
5.03
5.04
5.05
9 2,863,344.00 5.4230 0.0100
12 1,775,483.69 184,291.25 2,211,495.00 5.2430 0.0100
16 1,411,637.50 145,268.51 1,743,222.12 5.3550 0.0100
17 1,338,333.33 136,269.36 1,635,232.32 5.5000 0.0100
21 106,335.32 1,276,023.84 5.3700
22 989,340.61 102,269.12 1,227,229.44 5.2960 0.0100
23 952,340.16 99,636.90 1,195,642.80 5.1440 0.0100
25 978,546.75 99,707.03 1,196,484.36 5.4900 0.0100
28 973,050.46 5.9610
29 885,733.33 89,556.32 1,074,675.84 5.6000 0.0100
31 852,518.33 85,505.26 1,026,063.12 5.7200 0.0100
32 826,439.08 83,659.09 1,003,909.08 5.5830 0.0100
33 820,520.00 5.6200 0.0100
35 769,921.88 77,713.61 932,563.32 5.6250 0.0100
38 744,782.50 75,487.35 905,848.20 5.5650 0.0100
40 744,054.53 75,220.87 902,650.44 5.6020 0.0100
41 83,759.18 1,005,110.16 6.0000 0.0100
43 681,265.91 69,495.99 833,951.88 5.4740 0.0100
44 737,021.69 72,980.40 875,764.80 5.9220 0.0100
47 61,714.89 740,578.68 5.1520 0.0100
48 60,212.07 722,544.84 5.1720 0.0100
54 536,404.00 54,574.02 654,888.24 5.5110 0.0100
56 519,701.19 53,095.30 637,143.60 5.4530 0.0100
57 520,241.95 52,765.86 633,190.32 5.5550 0.0100
58 50,819.03 609,828.36 5.4500 0.0100
59 497,742.39 50,622.60 607,471.20 5.5160 0.0100
60 480,197.35 48,704.31 584,451.72 5.5550 0.0100
62 481,690.50 48,299.54 579,594.48 5.7240 0.0100
63 46,883.34 562,600.08 5.5630 0.0100
64 48,641.66 583,699.92 6.2500 0.0100
64.01
64.02
64.03
65 43,927.96 527,135.52 5.3120 0.0100
69 40,003.91 480,046.92 5.6900 0.0100
76 37,539.97 450,479.64 5.7970 0.0100
77 36,636.19 439,634.28 5.5740
78 36,571.73 438,860.76 5.5580 0.0100
80 35,954.85 431,458.20 5.6190 0.0100
82 329,354.71 34,082.52 408,990.24 5.2820 0.0100
84 339,027.72 34,453.79 413,445.48 5.5270 0.0100
93 40,201.05 482,412.60 6.2500 0.0100
97 275,502.00 5.3280 0.0100
98 53,044.12 636,529.44 8.5500 0.0100
101 52,459.77 629,517.24 8.6200 0.0100
103 26,357.32 316,287.84 5.2000 0.0100
105 27,579.32 330,951.84 6.0000 0.0100
108 254,551.81 25,099.62 301,195.44 5.9920
113 207,529.88 21,261.27 255,135.24 5.4150 0.0100
114 20,730.87 248,770.44 5.2600
121 182,113.71 18,619.19 223,430.28 5.4430 0.0100
122 19,507.19 234,086.28 5.4670 0.0100
123 81,617.92 979,415.04 9.1000 0.0100
125 51,762.25 621,147.00 8.0000 0.0100
127 17,697.09 212,365.08 6.2310 0.0100
130 152,077.25 15,204.29 182,451.48 5.7690 0.0100
131 26,606.95 319,283.40 8.6250 0.0100
135 20,344.99 244,139.88 8.7500 0.0100
139 45,546.60 546,559.20 9.6000 0.0100
140 11,227.09 134,725.08 6.0630
142 26,171.32 314,055.84 8.1250 0.0100
143 28,726.12 344,713.44 9.4400 0.0100
146 91,906.09 9,415.71 112,988.52 5.4150 0.0100
147 38,940.83 467,289.96 9.3750 0.0100
150 53,756.13 645,073.56 9.0000 0.0100
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
NET
MASTER TRUSTEE AND SUB SERVICING ADMIN. MORTGAGE
LOAN # SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE % ACCRUAL TYPE TERM REM. TERM
------ ------------- ---------------- -------- ----- ------ ------------ ---- ---------
1 0.0100 0.0010 0.021 5.1290 Actual/360 84 78
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
2 0.01000 0.00100 0.021 5.2342 Actual/360 60 57
3 0.0100 0.0010 0.021 5.4830 Actual/360 60 60
4 0.0100 0.0010 0.021 5.5096 Actual/360 121 119
4.01
4.02
4.03
4.04
4.05
5 0.0100 0.0010 0.021 5.5096 Actual/360 123 119
5.01
5.02
5.03
5.04
5.05
9 0.0100 0.0010 0.021 5.4020 30/360 84 79
12 0.0100 0.0010 0.021 5.2220 Actual/360 120 118
16 0.0100 0.0010 0.021 5.3340 Actual/360 120 118
17 0.0100 0.0010 0.021 5.4790 Actual/360 120 120
21 0.0100 0.0010 0.0500 0.061 5.3090 Actual/360 120 117
22 0.0100 0.0010 0.021 5.2750 Actual/360 120 118
23 0.0100 0.0010 0.021 5.1230 Actual/360 120 117
25 0.0100 0.0010 0.021 5.4690 Actual/360 120 118
28 0.0100 0.0010 0.0600 0.071 5.8900 Actual/360 84 84
29 0.0100 0.0010 0.021 5.5790 Actual/360 120 119
31 0.0100 0.0010 0.021 5.6990 Actual/360 120 118
32 0.0100 0.0010 0.021 5.5620 Actual/360 120 118
33 0.0100 0.0010 0.021 5.5990 Actual/360 128 125
35 0.0100 0.0010 0.021 5.6040 Actual/360 120 119
38 0.0100 0.0010 0.021 5.5440 Actual/360 120 119
40 0.0100 0.0010 0.021 5.5810 Actual/360 121 121
41 0.0100 0.0010 0.021 5.9790 Actual/360 120 118
43 0.0100 0.0010 0.021 5.4530 Actual/360 120 119
44 0.0100 0.0010 0.021 5.9010 Actual/360 71 69
47 0.0100 0.0010 0.021 5.1310 Actual/360 120 118
48 0.0100 0.0010 0.021 5.1510 Actual/360 120 115
54 0.0100 0.0010 0.021 5.4900 Actual/360 120 118
56 0.0100 0.0010 0.021 5.4320 Actual/360 120 120
57 0.0100 0.0010 0.021 5.5340 Actual/360 120 120
58 0.0100 0.0010 0.021 5.4290 Actual/360 120 115
59 0.0100 0.0010 0.021 5.4950 Actual/360 120 118
60 0.0100 0.0010 0.021 5.5340 Actual/360 120 118
62 0.0100 0.0010 0.021 5.7030 Actual/360 120 118
63 0.0100 0.0010 0.021 5.5420 Actual/360 120 118
64 0.0100 0.0010 0.021 6.2290 Actual/360 120 119
64.01
64.02
64.03
65 0.0100 0.0010 0.021 5.2910 Actual/360 120 117
69 0.0100 0.0010 0.021 5.6690 Actual/360 120 119
76 0.0100 0.0010 0.021 5.7760 Actual/360 120 118
77 0.0100 0.0010 0.1000 0.111 5.4630 Actual/360 120 118
78 0.0100 0.0010 0.021 5.5370 Actual/360 120 118
80 0.0100 0.0010 0.021 5.5980 Actual/360 120 118
82 0.0100 0.0010 0.021 5.2610 Actual/360 120 118
84 0.0100 0.0010 0.021 5.5060 Actual/360 120 118
93 0.0100 0.0010 0.021 6.2290 Actual/360 240 240
97 0.0100 0.0010 0.021 5.3070 Actual/360 120 118
98 0.0100 0.0010 0.021 8.5290 30/360 300 158
101 0.0100 0.0010 0.021 8.5990 30/360 300 159
103 0.0100 0.0010 0.021 5.1790 Actual/360 120 118
105 0.0100 0.0010 0.021 5.9790 Actual/360 120 120
108 0.0100 0.0010 0.1000 0.111 5.8810 Actual/360 120 120
113 0.0100 0.0010 0.021 5.3940 Actual/360 120 118
114 0.0100 0.0010 0.1000 0.111 5.1490 Actual/360 120 118
121 0.0100 0.0010 0.021 5.4220 Actual/360 120 119
122 0.0100 0.0010 0.021 5.4460 Actual/360 120 119
123 0.0100 0.0010 0.021 9.0790 30/360 180 46
125 0.0100 0.0010 0.021 7.9790 Actual/365 215 73
127 0.0100 0.0010 0.021 6.2100 Actual/360 108 106
130 0.0100 0.0010 0.021 5.7480 Actual/360 120 119
131 0.0100 0.0010 0.021 8.6040 Actual/365 299 153
135 0.0100 0.0010 0.021 8.7290 Actual/365 241 114
139 0.0100 0.0010 0.021 9.5790 Actual/365 186 52
140 0.0100 0.0010 0.1000 0.111 5.9520 Actual/360 120 120
142 0.0100 0.0010 0.021 8.1040 Actual/365 240 94
143 0.0100 0.0010 0.021 9.4190 Actual/365 216 83
146 0.0100 0.0010 0.021 5.3940 Actual/360 120 118
147 0.0100 0.0010 0.021 9.3540 Actual/365 180 46
150 0.0100 0.0010 0.021 8.9790 Actual/365 180 25
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
MATURITY/ AMORT ARD ENVIRONMENTAL CROSS
LOAN # ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN STEP UP INSURANCE DEFAULTED
------ -------- ---- ---------- ---------- -------- ------- --------- ---------
1 8/31/2012 0 0 Fee/Leasehold No Yes No
1.01 Fee Yes
1.02 Fee Yes
1.03 Fee Yes
1.04 Fee/Leasehold Yes
1.05 Fee Yes
1.06 Fee Yes
1.07 Fee Yes
1.08 Fee Yes
1.09 Fee Yes
1.10 Fee Yes
1.11 Fee Yes
1.12 Fee Yes
1.13 Fee Yes
1.14 Fee Yes
1.15 Fee Yes
1.16 Fee Yes
1.17 Fee Yes
2 12/1/2010 360 357 Fee/Leasehold No No No
3 3/1/2011 0 0 Fee/Leasehold No No No
4 2/1/2016 300 300 Fee No No Yes (1)
4.01 Fee No
4.02 Fee No
4.03 Fee No
4.04 Fee No
4.05 Fee No
5 2/1/2016 300 300 Fee/Leasehold No No Yes (1)
5.01 Fee No
5.02 Fee/Leasehold No
5.03 Fee No
5.04 Fee No
5.05 Fee No
9 10/1/2012 0 0 Fee Yes Interest Rate plus 2% No No
12 1/1/2016 360 360 Fee No No No
16 1/1/2016 360 360 Fee No No No
17 3/1/2016 360 360 Fee No No No
21 12/1/2015 360 357 Fee No No No
22 1/1/2016 360 360 Fee No No No
23 12/1/2015 360 360 Fee No No No
25 1/1/2016 360 360 Fee/Leasehold No No No
28 3/1/2013 0 0 Fee No No No
29 2/1/2016 360 360 Fee No No No
31 1/1/2016 360 360 Fee No No No
32 1/1/2016 360 360 Fee No No No
33 8/1/2016 0 0 Fee No No No
35 2/1/2016 360 360 Fee No No No
38 2/1/2016 360 360 Fee No No No
40 4/1/2016 360 360 Fee/Leasehold No No No
41 1/1/2016 300 298 Fee No No No
43 2/1/2016 360 360 Fee No No No
44 12/1/2011 360 360 Fee No No No
47 1/1/2016 360 358 Fee No No No
48 10/1/2015 360 355 Fee No No No
54 1/1/2016 360 360 Fee No No No
56 3/1/2016 360 360 Fee No No No
57 3/1/2016 360 360 Fee No No No
58 10/1/2015 360 355 Fee No No No
59 1/1/2016 360 360 Fee/Leasehold No No No
60 1/1/2016 360 360 Fee No No No
62 1/1/2016 360 360 Fee No No No
63 1/1/2016 360 358 Fee No No No
64 2/1/2016 360 359 Fee No No No
64.01 Fee No
64.02 Fee No
64.03 Fee No
65 12/1/2015 360 357 Fee No No No
69 2/1/2016 360 359 Fee No No No
76 1/1/2016 360 358 Fee No No No
77 1/1/2016 360 358 Fee No No No
78 1/1/2016 360 358 Fee No No No
80 1/1/2016 360 358 Fee No No No
82 1/1/2016 360 360 Fee No No No
84 1/1/2016 360 360 Fee No No No
93 3/1/2026 240 240 Fee No No No
97 1/1/2016 0 0 Fee No No No
98 5/1/2019 300 158 Fee No No No
101 6/1/2019 300 159 Fee No No No
103 1/1/2016 360 358 Fee No No No
105 3/1/2016 360 360 Fee No No No
108 3/1/2016 360 360 Fee No No No
113 1/1/2016 360 360 Fee No No No
114 1/1/2016 360 358 Fee No No No
121 2/1/2016 360 360 Fee No No No
122 2/1/2016 324 323 Fee No No No
123 1/1/2010 180 46 Fee No No No
125 4/1/2012 216 74 Fee No No No
127 1/1/2015 360 358 Fee No No No
130 2/1/2016 360 360 Fee No No No
131 12/1/2018 300 154 Fee No No No
135 9/1/2015 300 173 Fee No No No
139 7/1/2010 186 52 Fee No No No
140 3/1/2016 360 360 Fee No No No
142 1/1/2014 240 94 Leasehold No No No
143 2/1/2013 216 83 Fee No No No
146 1/1/2016 360 360 Fee No No No
147 1/1/2010 188 54 Fee No No No
150 4/1/2008 180 25 Fee No No No
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
PARTIAL UPFRONT UPFRONT UPFRONT
CROSS DEFEASANCE LETTER OF LOCKBOX IN HOLDBACK ENGINEERING CAPEX ENVIR.
LOAN # COLLATERALIZED ALLOWED CREDIT PLACE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($)
------ -------------- ------- ------ ----- ------ ----------- ----------- ------------
1 No Yes No Yes 134,952
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
2 No No No Yes
3 No No No Yes
4 Yes (1) Yes No Yes 85,750 1,237
4.01
4.02
4.03
4.04
4.05
5 Yes (1) Yes No Yes 62,350 1,237
5.01
5.02
5.03
5.04
5.05
9 No No No No
12 No No Yes No
16 No No No Yes
17 No No No No
21 No No Yes Yes
22 No No Yes No 19,375
23 No No No No
25 No No No No
28 No No No No 800,000
29 No No No No 400,000
31 No No Yes No 243,309
32 No No No No 500,000 85,851
33 No No No Yes 664,327
35 No No No No 33,214
38 No No No No 58,845
40 No No No No 15,461
41 No No No Yes
43 No No No No 133,635
44 No No No Yes
47 No No No No
48 No No No No
54 No No No No
56 No No No No
57 No No No No 500,000 60,065
58 No No No Yes 18,750
59 No No No No 35,250 32,063
60 No No No No
62 No No No Yes 131,252
63 No No No No
64 No No No Yes
64.01
64.02
64.03
65 No No No No 84,000
69 No No No No
76 No No No No
77 No No No No
78 No No No No
80 No No No No 26,200
82 No No No No 19,219
84 No No No No
93 No No No No 17,813
97 No No No No
98 No No No No
101 No No No No
103 No No No Yes
105 No No Yes No
108 No No No No
113 No No Yes No
114 No No No No
121 No No No No 31,157 350,000
122 No No No Yes
123 No No No No
125 No No No No
127 No No No Yes
130 No No No Yes
131 No No No No
135 No No No No
139 No No No No
140 No No No No 90,656 4,500
142 No No No No
143 No No No No
146 No No Yes No
147 No No No No
150 No No No No
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
UPFRONT UPFRONT UPFRONT UPFRONT MONTHLY MONTHLY MONTHLY
TI/LC RE TAX INS. OTHER CAPEX CAPEX TI/LC
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($)
------ ----------- ----------- ----------- ----------- ----------- --------------- -----------
1 95,675 1,760,203 305,241 667 29,804
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
2
3
4 562,526 407,820 4% of Gross Revenues
4.01
4.02
4.03
4.04
4.05
5 135,697 345,389 42,925 4% of Gross Revenues
5.01
5.02
5.03
5.04
5.05
9 3,333 40,000
12 117,668 2,242 38,409 2,685
16 1,662,524 25,548 18,801 1,641 59,076
17 1,300,000 2,135 8,333
21 357,940 88,874 7,765
22 250,000 54,402 15,781 735 20,250
23 28,310 5,250 962 3,583
25 180,000 67,671 2,528 67,730 1,137 8,000
28 37,050 277,427 1,782
29 57,867 30,373 3,733 134,388
31 42,145 10,694 3,336
32 68,835 14,400 129,000 1,045 62,716 3,889
33 4,154 7,066
35 1,024,000 7,726 18,201 700,000 2,253
38 500,000 136,737 28,842 2,135 128,100
40 175,000 977 24,000
41 39,062 43,968 4% of Gross Revenues
43 42,707 3,000 2,379 6,875
44 10,181 10,181
47 15,857 4,458
48 50,000 53,793 6,151 922 4,611
54 200,000 43,200 876 21,000 4,167
56 100,000 2,051 23,995 568
57 150,000 976
58 67,523 101,638 517
59 31,683 31,112 1,524
60 26,225 1,234
62 1,187 710 4,717
63 5,790 6,718 3,758 90,192
64 92,752 7,084
64.01
64.02
64.03
65 5,470 10,938
69 17,336 16,612 2,979 71,500
76 200,000 2,866 892
77 15,503 3,205 689
78 35,073 7,408 1,419 2,083
80 23,536 5,631 393 833
82 110,000 11,234 5,707 354 19,500
84 150,000 803 29,000
93 76,878 3,861 1,350
97 70,196
98
101
103 26,357
105 19,538 4,870 787
108 4,845 320 141 1,368
113 24,662 14,998 250 3,938
114 50,000 1,769
121 168,750 7,373 963 524 1,987
122 39,014
123 85,788
125 10,252 10,259
127 2,231 9,685 159
130 386 192,745 83 555
131
135
139 54,800 28,673
140 6,760 400,000 322 1,667
142 10,501 3,270
143 32,274
146 8,524 6,508 1,815
147 30,160 5,290
150 25,254 2,054
MLCFC 2006-1: MORTGAGE LOAN SCHEDULE
XXXXXXX XXXXX
MONTHLY MONTHLY MONTHLY MONTHLY
TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------ --------------- ----------- ----------- ----------- ------
1 249,933 43,606 333 0
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
2 5
3 0
4 141,729 73,830 0
4.01
4.02
4.03
4.04
4.05
5 66,021 28,780 14,585 0
5.01
5.02
5.03
5.04
5.05
9 5
12 29,417 2,242 5
16 12,774 3,760 5
17 100,000 18,047 2,498 5
21 35,794 7,776 5
22 9,520 5,260 5
23 86,000 14,863 2,625 5
25 180,000 22,557 2,528 5
28 18,525 6,440 5
29 14,467 6,297 5
31 19,839 3,565 5
32 140,000 12,230 2,057 5
33 5
35 7,726 3,033 5
38 21,056 2,622 5
40 12,074 5
41 24,588 5,496 5
43 21,353 5
44 4
47 18,915 2,643 5
48 17,931 1,538 5
54 300,000 5,245 5
56 3,144 684 5
57 4,807 5
58 5,558 1,000 Variable 5
59 6,385 3,111 5
60 11,554 3,666 5
62 2,724 593 5
63 5,790 2,239 5
64 15,459 2,361 5
64.01
64.02
64.03
65 5,459 1,367 5
69 4,334 1,510 5
76 2,248 955 5
77 7,752 1,603 5
78 125,000 11,691 741 5
80 50,000 5,884 1,021 5
82 1,966 1,902 5
84 3,818 5
93 25,626 1,931 5
97 5
98 0
101 0
103 5
105 3,256 812 5
108 45,000 2,407 160 5
113 6,165 4,999 5
114 884 842 5
121 3,687 481 5
122 5
123 18,853 3
125 4,026 545 10
127 744 1,937 3,166 5
130 19,980 4,472 386 5
131 0
135 0
139 10,976 2,606 0
140 40,000 3,380 525 5
142 3,649 725 0
143 13,873 0
146 2,131 2,169 5
147 6,876 761 10
150 5,050 846 10
