EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 16, 2006
(this "Agreement"), is entered into between KeyBank National Association (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Wachovia Bank, National
Association ("Wachovia") and KeyCorp Real Estate Capital Markets, Inc. ("KRECM")
as master servicers (each, in such capacity, a "Master Servicer"), KRECM as
special servicer (in such capacity, the "Special Servicer") and LaSalle Bank
National Association as trustee (the "Trustee"). Capitalized terms used but not
defined herein (including the schedules attached hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of June 16, 2006 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), KeyBanc
Capital Markets, a Division of McDonald Investments Inc. ("McDonald
Investments"), Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx"; Xxxxxxx Xxxxx, Countrywide Securities, McDonald
Investments, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, collectively, in such capacity,
the "Underwriters"), whereby the Purchaser will sell to the Underwriters all of
the Certificates that are to be registered under the Securities Act of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates"). The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of June 16,
2006 (the "Certificate Purchase Agreement"), with Xxxxxxx Xxxxx for itself and
as representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
$406,157,047 (the "KeyBank 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 KeyBank Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-off Date
(after giving effect to any payments due on or before such date, whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-off Date Pool Balance") of $1,841,447,787 (subject to a variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans shall take place
on June 28, 2006 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 97.78243% of the
KeyBank Mortgage Loan Balance as of the Cut-off Date, plus (ii) $1,747,597,
which amount represents the amount of interest accrued on the KeyBank 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, the Closing Date Deposit (in the amount of $101,620) to the
applicable Master Servicer on the Closing Date. The Closing Date Deposit shall
be delivered to the account specified by the applicable Master Servicer 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. 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 2006-2, Commercial Mortgage
Pass-Through Certificates, Series 2006-2, 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 2006-2, Commercial Mortgage Pass-Through
Certificates, Series 2006-2 (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 2006-2, Commercial Mortgage
Pass-Through Certificates, Series 2006-2, 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 2006-2, Commercial Mortgage
Pass-Through Certificates, Series 2006-2 (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 2006-2,
Commercial Mortgage Pass-Through Certificates, Series 2006-2, 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
2006-2, Commercial Mortgage Pass-Through Certificates, Series 2006-2, 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 2006-2, Commercial Mortgage Pass-Through
Certificates, Series 2006-2, 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 a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original from to the Trustee, but rather to the
applicable Master Servicer), in each case relating to the subject Mortgage
Loan;
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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 a 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 applicable Master Servicer in connection with its duties
under the Pooling and Servicing Agreement, and (c) are in the possession or
under the control of the Seller, together with all unapplied escrow amounts and
reserve amounts in the possession or under the control of the Seller that relate
to the Mortgage Loans, shall be delivered or caused to be delivered by the
Seller to the applicable Master Servicer (or, at the direction of such Master
Servicer, to the appropriate sub-servicer); provided that the Seller shall not
be required to deliver any draft documents, privileged or other communications,
credit underwriting, legal or other due diligence analyses, credit committee
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briefs or memoranda or other internal approval documents or data or internal
worksheets, memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to
the applicable Master Servicer, the initial data (as of the Cut-off Date or the
most recent earlier date for which such data is available) contemplated by the
CMSA Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and the Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's articles of association or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject if compliance therewith is necessary (1) to
ensure the enforceability of this Agreement or (2) for the Seller to
perform its duties and obligations under this Agreement, or (C) constitute
a default (or an
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event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which default might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Seller or
its properties or materially and adversely affect its performance
hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, 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
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constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the applicable Master
Servicer for deposit into its Collection Account any Substitution Shortfall
Amount in connection therewith; provided, however, that, unless the Document
Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage,
if such Document Defect or Breach is capable of being cured but not within such
90-day period and the Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, the Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or substitute the related Mortgage Loan (which, for purposes of
such repurchase or substitution, shall include an REO Loan)); and provided,
further, that with respect to such additional 90-day period, the Seller shall
have delivered an officer's certificate to the Trustee setting forth the
reason(s) such Document Defect or Breach is not capable of being cured within
the initial 90-day period and what actions the Seller is pursuing in connection
with the cure thereof and stating that the Seller anticipates that such Document
Defect or Breach will
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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 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
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which there is any uncured Document Defect or Breach known to the Seller, the
Seller shall provide, once every ninety days, the officer's certificate to the
Trustee described above as to the reason(s) such Document Defect or Breach
remains uncured and as to the actions being taken to pursue cure; provided,
however, that, without limiting the effect of the foregoing provisions of this
Section 3(c), if such Document Defect or Breach shall materially and adversely
affect the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to the second and third provisos in the sole
sentence of the preceding paragraph), the Seller shall in all cases on or prior
to the second anniversary of the Closing Date either cause such Document Defect
or Breach to be cured or repurchase or substitute for the affected Mortgage
Loan. The delivery of a commitment to issue a policy of lender's title insurance
as described in representation 8 set forth on Schedule I hereto in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect or Breach with respect to any Mortgage File if such
actual policy of insurance is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the
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related Mortgage Loan documents (and such Mortgaged Property(ies) are, in fact,
released) and to the extent not covered by the applicable release price (if any)
required under the related Mortgage Loan documents, the Seller pays (or causes
to be paid) any additional amounts necessary to cover all reasonable
out-of-pocket expenses reasonably incurred by the applicable Master Servicer,
the Special Servicer, the Trustee or the Trust Fund in connection with such
release, (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if
any, set forth in the Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause either of REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions and (iii) each Rating Agency then rating
the Certificates shall have provided written confirmation that such release
would not cause the then-current ratings of the Certificates rated by it to be
qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any fees or expenses
that are the subject of a cure by the Seller are subsequently obtained from the
related Mortgagor, the cure payment made by the Seller shall be returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the Seller,
acting in its sole discretion, may effect a repurchase or substitution (in
accordance with the provisions of this Section 3(c) setting forth the manner in
which a Mortgage Loan may be repurchased or substituted) of a Mortgage Loan, as
to which representation 30 set forth on Schedule I has been breached, in lieu of
paying the costs and expenses that were the subject of the breach of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the applicable Master Servicer's
Collection Account, and, if applicable, the delivery of the Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and
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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, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any
12
administrative decree or order to which it is subject if compliance therewith is
necessary (1) ensure the enforceability of this Agreement or (2) for the
Purchaser to perform its duties and obligations under this Agreement or (C)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Purchaser is a party or by
which the Purchaser is bound, which default might have consequences that would,
in the Purchaser's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Purchaser or its
properties or have consequences that would materially and adversely affect its
performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any 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.
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:
13
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the applicable Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and such Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
(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 June 16, 2006,
among the Seller, Countrywide Commercial Real Estate Finance, Inc., Xxxxxxx
Xxxxx Mortgage Lending, Inc., the Purchaser, the Underwriters and the Initial
Purchasers. Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the agreement(s) pursuant to which the servicing rights with
respect to the Mortgage Loans are being sold to the applicable Master Servicer;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller
14
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on such date; and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part that are required under this Agreement to be
performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his/her
attention that would lead him/her to believe that the Specified Portions of the
Free Writing Prospectus, as of the Time of Sale or as of the Closing Date,
included or include any untrue statement of a material fact relating to the
Mortgage Loans or omitted or omit to state therein a material fact necessary in
order to make the statements therein relating to the Mortgage Loans, in light of
the circumstances under which they were made, not misleading, (ii) such officer
has carefully examined the Specified Portions (as defined below) of the
Prospectus Supplement and nothing has come to his/her attention that would lead
him/her to believe that the Specified Portions of the Prospectus Supplement, as
of the date of the Prospectus Supplement or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, and (iii) such officer
has carefully examined the Specified Portions (as defined below) of the
Memorandum (pursuant to which certain classes of the Private Certificates are
being privately offered) and nothing has come to his/her attention that would
lead him/her to believe that the Specified Portions of the Memorandum, as of the
date thereof or as of the Closing Date, included or include any untrue statement
of a material fact relating to the Mortgage Loans or omitted or omit to state
therein a material fact necessary in order to make the statements therein
related to the Mortgage Loans, in the light of the circumstances under which
they were made, not misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 (as contained in each of the June 8, 2006 Free Writing
Prospectus and the June 15, 2006 Free Writing Prospectus) thereto, entitled
"Certain Characteristics of the Mortgage Loans" (insofar as the information
contained in Annex A-1 relates to the Mortgage Loans sold by the Seller
hereunder), Annex A-2 to the Free Writing Prospectus, entitled "Certain
Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Free Writing Prospectus entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder),
15
Annex C to the Free Writing Prospectus, entitled "Structural and Collateral Term
Sheet" (insofar as the information contained in Annex C relates to the Mortgage
Loans sold by the Seller hereunder), the CD-ROM which accompanies the Free
Writing Prospectus (insofar as such CD-ROM is consistent with Annex X-0, Xxxxx
X-0 and/or Annex B), and the following sections of the Free Writing Prospectus
(only to the extent that any such information relates to the Seller or the
Mortgage Loans sold by the Seller hereunder and exclusive of any statements in
such sections that purport to describe the servicing and administration
provisions of the Pooling and Servicing Agreement and exclusive of aggregated
numerical information that includes the Other Mortgage Loans): "Summary of
Offering Prospectus--Relevant Parties--Sponsors/Mortgage Loan Sellers", "Summary
of Offering Prospectus--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Mortgage Loans", "Description of the
Mortgage Pool" and "Transaction Participants--The Sponsors".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Description of the
Ten Largest Mortgage Loans or Groups of Cross-Collateralized Mortgage Loans"
(insofar as the information contained in Annex C relates to the Mortgage Loans
sold by the Seller hereunder), the CD-ROM which accompanies the Prospectus
Supplement (insofar as such CD-ROM is consistent with Annex X-0, Xxxxx X-0
and/or Annex B), and the following sections of the Prospectus Supplement (only
to the extent that any such information relates to the Seller or the Mortgage
Loans sold by the Seller hereunder and exclusive of any statements in such
sections that purport to describe the servicing and administration provisions of
the Pooling and Servicing Agreement and exclusive of aggregated numerical
information that includes the Other Mortgage Loans): "Summary of Prospectus
Supplement--Relevant Parties--Sponsors/Mortgage Loan Sellers", "Summary of
Prospectus Supplement--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Mortgage Loans", "Description of the
Mortgage Pool" and "Transaction Participants--The Sponsors".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated June
8, 2006 (the "June 8, 2006 Free Writing Prospectus"), and relating to the
Publicly-Offered Certificates, as supplemented and amended by that certain free
writing prospectus (the first two (2) pages of which are attached hereto as
Schedule III) distributed to potential investors in the Publicly-Offered
Certificates on June 15, 2006 (the "June 15, 2006 Free Writing Prospectus"),
which free
16
writing prospectus consists of a revised version of Annex A-1 to the June 8,
2006 Free Writing Prospectus;
"Memorandum" means the confidential Private Placement Memorandum
dated June 16, 2006, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 5 , 2006.
"Prospectus Supplement" means the prospectus supplement dated June
16, 2006, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means June 16, 2006, at 2:30 p.m.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the articles of association
and bylaws of the Seller, and (iii) a certificate of corporate existence of the
Seller issued by the Office of the Comptroller of the Currency not earlier than
thirty (30) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
(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
17
to the holder of the Mortgage Loans in accordance with the terms thereof, and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation,
all amounts, other than investment earnings (other than investment earnings
required by Section 3.19(a) of the Pooling and Servicing Agreement to offset
Prepayment Interest Shortfalls), from time to time held or invested in the
applicable Master Servicer's Collection Account, the Distribution Account or, if
established, the REO Account whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 of this Agreement shall
be deemed to be an assignment of any security interest created hereunder; (iv)
the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser any disclosure information relating to
any event, specifically relating to the Seller, reasonably determined in good
faith by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form
10-K by the Trust Fund (in formatting reasonably appropriate for inclusion in
such form) insofar as such disclosure is required under Item 1117 or 1119 of
Regulation AB or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts
to deliver proposed disclosure language relating to any event, specifically
relating to the Seller, described under Item 1117 or 1119 of Regulation AB or
Item 1.03 to Form 8-K to the Purchaser as soon as reasonably practicable after
the Seller becomes aware of such event and in no event more than two business
days following the occurrence of such event if such event is reportable under
Item 1.03 to Form 8-K. The obligation of the Seller to provide the above
referenced disclosure materials in any fiscal year of the Trust will terminate
upon the Trustee's filing a Form 15 with respect to the Trust as to that fiscal
year in accordance with Section 8.16 of the Pooling and Servicing Agreement or
the reporting requirements with respect to the Trust under the Securities
Exchange Act of 1934, as amended (the "1934 Act") have otherwise automatically
suspended. The Seller hereby acknowledges that the information to be provided by
it pursuant to this Section 9 will be used in the preparation of reports meeting
the reporting requirements of the Trust under Section 13(a) and/or Section 15(d)
of the 1934 Act.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
either by certified mail (return
18
receipt requested) or by courier service (proof of delivery requested) and also
by facsimile transmission to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto, or as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received (in the
case of a notice sent by mail or courier service) or transmitted (in the case of
a faxed notice), in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party
19
that obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party that commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
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
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property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, including, without limitation, each of the
representations and warranties set forth in Schedule I hereto and each of the
capitalized terms used herein but defined in the Pooling and Servicing
Agreement, shall be interpreted in a manner consistent with this Section 21. In
addition, if there exists with respect to any Crossed Loan Group only one
original of any document referred to in the definition of "Mortgage File" in
this Agreement and covering all the Mortgage Loans in such Crossed Loan Group,
the inclusion of the original of such document in the Mortgage File for any of
the Mortgage Loans in such Crossed Loan Group shall be deemed an inclusion of
such original in the Mortgage File for each such Mortgage Loan.
[SIGNATURE PAGES TO FOLLOW]
21
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
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X Xxxxxxx
Title: Authorized Official
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Officer in Charge of Commercial
Mortgage Securitization
KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
KeyBank National Association
c/o KeyBank Real Estate Capital
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.:(000) 000-0000
Purchaser:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
Facsimile No.: 000-000-0000
and with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
Telecopier No.: (000) 000-0000
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to the Purchaser
or its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is, or shall be as of the Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in June 2006, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent since the date
of origination of any Mortgage Loan, without giving effect to any applicable
grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in any event
subject, however, to the following (collectively, the "Permitted Encumbrances"):
(a) the lien for current real estate taxes, ground rents, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties; (b)
covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record and/or are referred to in the related lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy or a "marked-up" commitment binding upon the title insurer); (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment binding upon the title insurer); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Crossed Group; (g) if the related Mortgaged Property consists of one or
more units in a condominium, the related condominium declaration; and (h) the
rights of the holder of any Non-Trust Loan that is part of a related Loan
Combination to which any such Mortgage Loan belongs. The Permitted Encumbrances
do not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any Non-Trust Loan that is part of a related Loan Combination to which any
such Mortgage Loan belongs, and except that a license may have been granted to
the related Mortgagor to exercise certain rights and perform certain obligations
of the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession of the related Mortgaged Property to collect
the rents or provides for rents to be paid directly to the related mortgagee, if
there is an event of default beyond applicable notice and grace periods. Except
for the holder of the related Non-Trust Loan
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with respect to any Mortgage Loan that is part of a Loan Combination, no person
other than the related Mortgagor owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Mortgagor has not been released from
its obligations under such Mortgage, in whole or in material part. With respect
to each Mortgage Loan, since the later of (a) June 1, 2006 and (b) the closing
date of such Mortgage Loan, the Seller has not executed any written instrument
that (i) impaired, satisfied, canceled, subordinated or rescinded such Mortgage
Loan, (ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance of
doubt, the preceding sentence does not relate to any release of escrows by the
Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a
Mortgage Loan is covered by an American Land Title Association (or an equivalent
form of) lender's title insurance policy (the "Title Policy") (or, if such
policy has yet to be issued, by a pro forma policy or a "marked up" commitment
binding on the title insurer) in the original principal
I-3
amount of such Mortgage Loan after all advances of principal, insuring that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to the Permitted Encumbrances, except that in the case of a
Mortgage Loan as to which the related Mortgaged Property is made up of more than
one parcel of property, each of which is secured by a separate Mortgage, such
Mortgage (and therefore the related Title Policy) may be in an amount less than
the original principal amount of the Mortgage Loan, but is not less than the
allocated amount of subject parcel constituting a portion of the related
Mortgaged Property. Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole insured without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for whether, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available) that, (a) the related Mortgaged Property has access
to a public road, and (b) the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental
I-4
investigation conducted in connection with the origination of the related
Mortgage Loan related to asbestos-containing materials and lead-based paint),
(a) an environmental site assessment meeting ASTM standards and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the related Mortgaged Property, a transaction screen meeting
ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan
I-5
require the related Mortgagor to comply in all material respects with all
applicable federal, state and local environmental laws and regulations. Each of
the Mortgage Loans identified on Annex C hereto is covered by a secured creditor
environmental insurance policy and each such policy is noncancellable during its
term, is in the amount at least equal to 125% of the principal balance of the
Mortgage Loan, has a term ending no sooner than the date which is five years
after the maturity date of the Mortgage Loan to which it relates and either does
not provide for a deductible or the deductible amount is held in escrow and all
premiums have been paid in full. Each Mortgagor represents and warrants in the
related Mortgage Loan documents that except as set forth in certain
environmental reports and to its knowledge it has not used, caused or permitted
to exist and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor (or
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, out-of-pocket expenses and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the
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equivalent) policy, in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the full insurable
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property is
also covered by comprehensive general liability insurance in amounts customarily
required by prudent commercial mortgage lenders for properties of similar types.
Each Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which is reasonably estimated
to cover no less than twelve (12) months of rental income), unless such
Mortgaged Property constitutes a manufactured housing community. If any portion
of the improvements on a Mortgaged Property securing any Mortgage Loan was, at
the time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the 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
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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. 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-8
(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 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
I-9
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 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
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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 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
I-11
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 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
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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 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
I-13
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 any cash
management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal and/or interest. If any ARD Loan is not paid in full by
its Anticipated Repayment Date, and assuming it is not otherwise in default, (i)
the rate at which such ARD Loan accrues interest will increase by at least two
(2) percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in
I-14
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, 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
I-15
possession or under the control of Seller or its agents (which shall include the
applicable Master Servicer). All such escrow deposits are being conveyed
hereunder to the Purchaser. Any and all material requirements under each
Mortgage Loan as to completion of any improvements and as to disbursement of any
funds escrowed for such purpose, which requirements were to have been complied
with on or before the date hereof, have been complied with in all material
respects or, if and to the extent not so complied with, the escrowed funds (or
an allocable portion thereof) have not been released except in accordance with
the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the applicable
Due Date or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed,
in the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof,and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan;
I-16
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.
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ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
[Attached]
REPRESENTATION 2 / OWNERSHIP OF MORTGAGE LOANS:
A third party is entitled to a correspondent fee with respect to each of
the following Mortgage Loans:
10026989 Hungrybrook Shopping Center
10029591 Centennial Hanford
10029801 The Promontory Office Park
10029811 Chestnut Hill Apartments
10029812 Lakes of Olentangy Apartments
10029813 Eastpointe Lakes Apartments
10029824 Pioneer Plaza
10029872 Dublin Plaza
10029874 Genoa Square
10029961 Citrus Heights Office Building
10030273 Xxxx'x Supermarket
10030491 Xxxxx Xxxxx
00000000 000xx & Xxxxxxx Retail Building
REPRESENTATION 4 / LIEN; VALID ASSIGNMENT:
With respect to Loan No. 10030058/Carriage Hills, the related Mortgage
Loan is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
REPRESENTATION 5/ASSIGNMENT OF LEASES AND RENTS:
With respect to Loan No. 10030058/Carriage Hills, the related Mortgage
Loan is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The related Assignment of Leases secures both the Mortgage Loan
(with a first priority lien) and the corresponding "B Loan" (with a subordinate
lien thereto).
REPRESENTATION 8/TITLE INSURANCE:
With respect to Loan No. 10030058/Carriage Hills, the related Mortgage
Loan is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The Mortgage and title insurance policy are each in the amount of
the sum of the principal balances of the Mortgage Loan and the corresponding
subordinate "B Loan".
REPRESENTATION 10/MORTGAGE PROVISIONS:
With respect to Loan No. 10029591/Commercial Hanford, terrorism coverage
not required if cost is commercially unreasonable.
With respect to Loan No. 10030171/Marketplace of Xxxxxxxx, terrorism
coverage is not required to the extent the premium for such coverage exceeds
$50,000 annually.
With respect to Loan No. 10030336/Peoria Crossing II, the related Mortgage
Loan documents provide that the related borrower is required to maintain
insurance coverage for acts of terrorism if such coverage is commercially
reasonable for properties similar to the related Mortgaged Property; provided,
however, that the related borrower will not be required to maintain such
terrorism coverage if (i) borrower confirms in writing that it will protect and
hold the mortgagee harmless from losses associated with terrorism risks by,
among other things, depositing with the mortgagee sums sufficient to pay all
uninsured costs related to a restoration following any act of terrorism, or
prepaying the related Mortgage Loan in accordance with the provisions of the
related Mortgage Loan documents (including payment of applicable prepayment
consideration), and (ii) the indemnitor for the related Mortgage Loan executes a
guaranty pursuant to which such indemnitor guarantees payment of all losses
associated with terrorism risks and such indemnitor maintains a specified net
worth and a specified loan to value ratio for all properties in which such
entity has a direct or indirect ownership interest.
REPRESENTATION 12/ENVIRONMENTAL CONDITIONS:
With respect to Loan No. 10027329/Uxbridge CVS, a Phase I environmental
site assessment conducted on the Mortgaged Property indicated the presence of an
oil storage tank on the eastern portion of the Mortgaged Property from
approximately 1903 to 1925 and historical records indicated that a gas station
was previously operated on a portion of the Mortgaged Property. Because of a
lack of additional information regarding the oil storage tank and the gas
station, the Phase I environmental site assessment recommended a subsurface
investigation. The Seller chose not to have a subsurface investigation
conducted, because CVS, the tenant, had agreed to take possession of and lease
the Mortgaged Property without exception for the potential environmental
conditions.
With respect to Loan Xx. 00000000/ Xxxxxx Xxxxx, a drycleaner has been
operated at the Mortgage Property since approximately 1983. Accordingly, the
Phase I environmental site assessment recommended a Phase II investigation to
evaluate whether the drycleaner has impacted the Mortgaged Property. The Seller
chose not to conduct further investigation, relying instead on the financial
wherewithal of the party providing the environmental indemnity in connection
with the Mortgage Loan.
REPRESENTATION 14/INSURANCE:
The casualty policy for Loan No. 10030273 / Xxxx'x Supermarket excludes
coverage for acts of terrorism.
The casualty policy for Loan No. 10029385 / Hartville Giant Eagle Center
and Green Giant Eagle Supercenter does not name the holder of the related
Mortgage as a loss payee, does not contain a standard mortgagee clause for the
benefit of the holder of the related Mortgage and does not provide that it is
not terminable (or that the amount of coverage can be reduced) without ten (10)
days prior written notice to mortgagee. The Mortgage Loan documents contain an
assignment of the insurance proceeds in favor of the holder of the related
Mortgage.
REPRESENTATION 18/MATERIAL LEASEHOLD ESTATE:
The following exceptions are taken for Loan No. 10029712/Power Self
Storage Ventura:
Representation (i): The fee interest is subject to an unsubordinated first
mortgage lien arising from a 1923 trust indenture encumbering all property of
the fee owner, Southern California Edison. The Title Policy issued by Chicago
Title Insurance Company insures Lender against loss sustained by reason of
enforcement or attempted enforcement of such mortgage lien, including
foreclosure or acceptance of deed in lieu of foreclosure.
Representation (iii): Upon foreclosure, Mortgagor's interest in the Ground
Lease is assignable without consent of the lessor. Thereafter, it is assignable
by the mortgagee if mortgagee is the purchaser at such foreclosure sale, but any
subsequent transfer or transfer by a third party purchaser at a foreclosure sale
does require Lessor's consent.
REPRESENTATION 23/OTHER MORTGAGE LIEN:
With respect to Loan No. 10030058/Carriage Hills, the related Mortgage
Loan is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
With respect to Loan No. 10029691/Rivergate Business Center the Mortgaged
Property is encumbered with a mortgage lien that is subordinate to the Mortgage
Loan. The subordinate lien holder has executed a subordination agreement in
favor of the holder of the related Mortgage.
REPRESENTATION 27/CROSS-COLLATERALIZATION:
With respect to Loan No. 10030058/Carriage Hills the related Mortgage Loan
is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
REPRESENTATION 28/RELEASES OF MORTGAGED PROPERTIES:
Loan No. 10029385/Hartville Giant Eagle Center and Green Giant Eagle
Supercenter permits the unconditional release of an improved parcel to which
Seller did not give any material value in underwriting the Mortgage Loan.
REPRESENTATION 34/DUE ON SALE:
With respect to Loan No. 10030336/Peoria Crossing II, Lender shall not
withhold its consent to a transfer of greater than 49% of the direct or indirect
ownership interests in the related Mortgagor provided such transfer is to a
"qualified entity" (i.e. an entity with a net worth of $25 million or more, with
sufficient experience in the ownership and management of properties similar to
the Mortgaged Property) and, if required or requested by the rating agencies,
delivery of a substantive non-consolidation opinion with respect to any party
acquiring more than 49% of the ownership interests in the related Mortgagor.
Loan Nos. 10029216/Claremore Medical Arts Plaza and 10029217/Denton
Medical Office Building each permit the transfer of the Mortgaged Property, or
the transfer of equity interests in the related Mortgagor, to a newly formed
special purpose entity owned by specified parties.
Loan No. 10029691/Rivergate Business Center permits the transfer within
180 days of the loan closing, of up to 72.75% of the membership interests in the
related Mortgagor in the aggregate, provided there is no change in the managing
member of Mortgagor.
REPRESENTATION 37/TAX PARCEL:
With respect to Loan No. 10030171/Marketplace of Matteson, the tax lot of
the Mortgaged Property includes a small parcel of tax exempt property owned by
the City of Matteson.
With respect to Loan No. 10029138/Waterfall Shoppes, a portion of the
Mortgaged Property, which is the subject of a ground lease, is in a tax parcel
which includes other property. The related borrower must escrow for taxes for
all property included in the tax parcel and a non-recourse carveout was added
for losses relating to the failure of the applicable portion of the Mortgaged
Property to constitute a separate tax parcel.
REPRESENTATION 42/SERVICING RIGHTS:
A third party is entitled to a correspondent fee with respect to each of
the following Mortgage loans:
10026989 Hungrybrook Shopping Center
10029591 Centennial Hanford
10029801 The Promontory Office Park
10029811 Chestnut Hill Apartments
10029812 Lakes of Olentangy Apartments
10029813 Eastpointe Lakes. Apartments
10029824 Pioneer Plaza
10029872 Dublin Plaza
10029874 Genoa Square
10029961 Citrus Heights Office Building
10030273 Xxxx'x Supermarket
10030491 Crown Plaza
10030712 135th & Hemlock Retail Building
REPRESENTATION 47/OPERATING STATEMENTS:
With respect to Loan No. 11510740/Marathon Plaza, annual rent rolls,
financial statements and income and expense statements are required, and lender
may request quarterly income and expense statements.
With respect to Loan Nos. 10029811/Chestnut Hill Apartments,
10029812/Lakes of Olentangy Apartments, 00000000/Xxxxxxxxxx Xxxx Xxxxxxxxxx,
00000000/Xxxxxx Xxxxx, 00000000/Xxxxx Square and 10030273/Xxxx'x Grocery, the
Mortgage Loan documents do not require the delivery of an annual financial
statement of the related Mortgagor, but do require the delivery of an annual
balance sheet of the related Mortgagor and an annual operating statement with
respect to the Mortgaged Property.
REPRESENTATION 53/ORIGINATION OF MORTGAGE LOANS:
Loan No. 11510740/Marathon Plaza was originated by Golden Rule Insurance
Company and subsequently acquired by Seller.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE
WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
None.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
PROPERTY
LOAN # PROPERTY NAME ORIGINATOR TYPE STREET ADDRESS
-----------------------------------------------------------------------------------------------------------------------------------
8 Chestnut Hill Apartments Key Multifamily 0000 Xxxxxxxxxxx Xxxx
10 Oak Hill Apartments Key Multifamily 0000 Xxx Xxxx Xxxxxx
18 Highlands Plaza Key Retail 15 & 00 Xxxxxxx Xxxxx & 000 Xxxxxxx Xxxxxx
22 Marketplace of Matteson Shopping Center Key Retail 0000-0000 Xxxx Xxxxxxx Xxxxxxx
28 Lakes of Olentangy Apartments Key Multifamily 000 Xxxxxxxxxx Xxxx
29 Giant Eagle Portfolio Key Retail Various
29.01 Hartville Center - Giant Eagle Key Retail 000-000 Xxxx Xxxxx Xxxxxx
29.02 Green Giant Eagle Key Retail 0000 Xxxxxxxxx Xxxxx Xxxxxxx
30 Oasis of Bermuda Dunes Apartments Key Multifamily 00000 00xx Xxxxxx
34 Denton Medical Office Key Office 3000 X-00 Xxxx, Xxxxxxxx 000
00 Xxxxxx Xxxxx Key Retail 000-000 Xxxx Xxxxxx Xxxxxx
39 Harbor Plaza Shopping Center Key Retail 0000 Xxxxx Xxxxxxx Xxxxx XX
41 Cedar - Pennsboro Commons Shopping Center Key Retail 000 Xxxx Xxxx Xxxxx
45 Eastpointe Lake Apartments Key Multifamily 000 Xxxxxxxxx Xxxx Xxxxx
00 Xxxxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxx 000 Xxxxxxxx Xxxxxx
54 Northwest Kinetics Building Key Office 0000 Xxxxxxx Xxxxxx
59 Centennial Hanford Shopping Center Key Retail 000-000 Xxxxx 00xx Xxxxxx
64 The Promontory Office Park Key Office 406, 408,412,414 and 000 Xxxxxxx Xxxxxx
65 Claremore Medical Arts Plaza Key Office 0000 Xxxxx Xxxxxxxx Xxxxxx
66 Roseland Shopping Center Key Retail 46509, 46663 & 00000 Xxxxx Xxxx
68 Xxxx'x Supermarket Key Retail 000 Xxxxxxxxx-Xxxxx Xxxx
00 Xxxxxxxxx Office Key Office 000 Xxxxxxx Xxxxxxxxx
71 Waterfall Shoppes Key Retail 5070, 5088, & 0000 00xx Xxxxxx XX
78 Pioneer Plaza Key Retail 0000 Xxxxx Xxxxxxx Xxxx
80 Crown Plaza Office Key Office 0000 Xxxxxxx Xxxx Xxxxx
81 Eastgate Village Key Multifamily 000 Xxx Xxxxx Xxxxx 00
83 Xxxxxxx Self Storage Key Self Storage 00000 Xxxxxxx Xxxxxx
84 Power Self Storage - Ventura Key Self Storage 0000 Xxxxx Xxxxxxxx Xxxxxx
96 Hupps Mill Plaza Key Retail 0000 Xxxxxxx Xxxxxx
98 Power Self Storage - Long Beach Key Self Storage 2506 and 0000 Xxxxxxxx Xxxxxx
102 Hungarybrook Shopping Center Key Retail 0000-0000 Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxx Xxxxxxxxxx Xxx Multifamily 0000 Xxxxxx Xxxxx
000 Xxxxxxx Xxxxx Xxx Retail 0000-0000 Xxxx Xxxxxxxx Xxxxxxxxx
111 The Storage Center - Baton Rouge Key Self Storage 0000 Xxxxxxx Xxxxxxxxx
118 Genoa Square Shopping Center Key Retail 5275 & 0000 Xxxxxxx Xxxx
123 Woodridge Apartments Key Multifamily 1895 & 0000 X Xxxxxx
000 Xxxxxxxx Xxxxxxx Retail Center Key Retail 0000 Xxxxx 00xx Xxxxxx
125 Extra Space of Pico Xxxxxx Key Self Storage 0000 Xxxxxxx Xxxxxxxxx
129 Uxbridge CVS Key Retail 000 Xxxxx Xxxx Xxxxxx and Hartford Avenue
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxx Xxxxxxxxxxx 0000-0000 Xxxxxxx Drive
000 Xxxxx Xxxxxxxx Xxxxx Xxx Retail 0000 Xxxx Xxxx Xxxxxxx Xxxxxxx
000 Xxxx Xxxxx Xxxx Xxxxxx Xxxxxxxx 00 Xxx Retail 00000 Xxxxx Xxxxx Xxxx
140 Carnegie Corporate Plaza Key Mixed Use 6180 and 0000 Xxxxxxx Xxxx
146 Compass Group Building Key Industrial 0000 Xxxxxxxxxx Xxxxx
147 Verizon Wireless & Mens Warehouse Retail Center Key Retail 00000 Xxxx Xxxxxxx
000 Xxxxxx Xxxxxxx Office Key Office 0000 Xxxxxxxxx Xxxx
154 Hemlock Shops Key Retail 0000-0000 Xxxx 000xx Xxxxxx
155 Tiffin Rite-Aid Key Retail 000 Xxxx Xxxxxx Xxxxxx
000 Xxxxxx Crossings Phase II Key Retail 9280 and 0000 Xxxx Xxxxxxxx Xxxxxx
162 Talpier Xxxxx Retail Key Retail 0000 Xxxxxxx Xxxx
177 Marathon Plaza Key Office 8040 East Xxxxxx Trail
000 Xxx Xxxxxxx xx Xxxxx Xxxx Xxxxx Xxx Retail 000-000 Xxxxx Xxxxx Xxxx 7
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT
LOAN # CITY COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($)
------------------------------------------------------------------------------------------------------------------------------------
8 Xxxxxxxx Xxxxxxxx XX 00000 29,675,000 29,675,000 173,363.81
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 25,456,595 25,480,000 146,275.32
00 Xxxxxx Xxxxxxx XX 00000 18,000,000 18,000,000 100,066.65
22 Xxxxxxxx Xxxx XX 00000 16,800,000 16,800,000 73,360.00
00 Xxxxx Xxxxxx Xxxxxxxx XX 00000 14,136,000 14,136,000 79,819.76
29 Various Various OH Various 14,055,000 14,055,000 86,996.63
29.01 Xxxxxxxxx Xxxxx XX 00000 8,986,573 8,986,573
29.02 Xxxxx Xxxxxx XX 00000 5,068,427 5,068,427
00 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 13,971,234 14,000,000 79,227.15
00 Xxxxxx Xxxxxx XX 00000 12,690,000 12,690,000 77,722.31
00 Xxxxxx Xxxxxxxx XX 00000 12,000,000 12,000,000 68,965.17
00 Xxx Xxxxxx Xxxxxx XX 00000 11,988,302 12,000,000 67,084.38
41 Xxxxx Xxxxxxxxxx XX 00000 11,505,393 11,540,000 65,450.47
00 Xxxxxxxxx Xxxxxxxx XX 00000 11,050,000 11,050,000 62,394.48
00 Xxxxxx Xxxx Xxxxxxx XX 00000 10,200,000 10,200,000 63,668.09
00 Xxxxxx Xxxxxx XX 00000 9,991,247 10,000,000 58,611.64
00 Xxxxxxx Xxxxx XX 00000 9,891,245 9,900,000 57,773.71
00 Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 8,775,241 8,800,000 51,466.27
00 Xxxxxxxxx Xxxxxx XX 00000 8,603,000 8,603,000 52,690.71
00 Xxxxxx Xxxxxxxx Xxxxxx XX 00000 8,477,339 8,500,000 55,443.07
00 Xxxxxxxxx Xxxxxxxxxx XX 00000 8,400,000 8,400,000 48,328.62
00 Xxxxxxxxx Xxxxxx XX 00000 8,100,000 8,100,000 38,188.13
00 Xxxxx Xxxxxx Xxxx XX 00000 7,800,000 7,800,000 45,568.25
00 Xxxxxxxxx Xxxxxxx XX 00000 7,500,000 7,500,000 44,629.31
80 Sacramento Xxxxxxxxxx XX 00000 7,400,000 7,400,000 45,082.88
00 Xxxxxxxxxx Xxxxxxxx XX 00000 7,393,671 7,400,000 43,797.44
00 Xxxxx Xx Xxxxxxx Xxx Xxxxxxx XX 00000 7,300,000 7,300,000 45,709.74
00 Xxxxxxx Xxxxxxx XX 00000 7,286,314 7,300,000 43,252.26
00 Xxxxx Xxxxxx Xxxxxxx XX 00000 6,394,340 6,400,000 37,348.66
00 Xxxx Xxxxx Xxx Xxxxxxx XX 00000 6,300,000 6,300,000 38,708.27
000 Xxxxxxxx Xxxxxxx XX 00000 5,815,089 5,850,000 34,287.81
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 5,620,000 5,620,000 34,093.22
000 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000 5,600,000 5,600,000 34,116.78
000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx XX 00000 5,200,000 5,200,000 32,152.70
118 Xxxxxxxxxxx Xxxxxxxx XX 00000 4,900,000 4,900,000 28,253.59
000 Xxxxxx Xxxxxxxx XX 00000 4,732,291 4,752,000 30,096.48
000 Xxxxxxxx Xxxxxxxx XX 00000 4,696,287 4,700,000 28,725.07
000 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000 4,513,000 4,513,000 26,136.30
000 Xxxxxxxx Xxxxxxxxx XX 00000 4,455,802 4,475,000 25,831.30
000 Xxxxxx Xxxxxx XX 00000 4,082,706 4,100,000 23,900.45
000 Xxxxxxx Xxxxxx XX 00000 4,047,615 4,055,000 24,363.94
000 Xxxxx Xxxxx Xxxxxx XX 00000 3,800,000 3,800,000 21,983.03
000 Xxxxx Xxxxxxxx XX 00000 3,560,000 3,560,000 22,035.43
000 Xxxxxxxxx Xxxxxxxxxxx XX 00000 3,332,122 3,338,000 20,379.28
000 Xxxxxxxxxxx Xxxxxx XX 00000 3,301,000 3,301,000 19,495.03
000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 3,000,000 3,000,000 18,141.11
000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 2,850,000 2,850,000 16,613.73
000 Xxxxxx Xxxxxx XX 00000 2,829,802 2,835,000 16,979.03
000 Xxxxxxxx Xxxxxxxx XX 00000 2,593,000 2,593,000 12,662.48
000 Xxxx Xxxx Xxxxxxxxxx XX 00000 2,400,000 2,400,000 15,536.67
000 Xxxxxxxxxx Xxxxxxxx XX 00000 1,840,788 2,025,000 15,898.51
000 Xxxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000 1,847,625 1,850,000 11,885.67
ANNUAL P&I DEBT INTEREST PRIMARY MASTER TRUSTEE AND SUB SERVICIN
LOAN # SERVICE ($) RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE FEE RATE
-------------------------------------------------------------------------------------------------------------------------------
8 2,080,365.72 5.7600 0.030 0.020 0.0012
10 1,755,303.84 5.6000 0.030 0.020 0.0012
18 1,200,799.80 5.3100 0.030 0.020 0.0012
22 880,320.00 5.2400 0.030 0.020 0.0012
28 957,837.12 5.4500 0.030 0.020 0.0012
29 1,043,959.56 6.3000 0.030 0.020 0.0012
29.01
29.02
30 950,725.80 5.4700 0.030 0.020 0.0012
34 932,667.72 6.2000 0.030 0.020 0.0012
38 827,582.04 5.6100 0.030 0.020 0.0012
39 805,012.56 5.3600 0.030 0.020 0.0012
41 785,405.64 5.4900 0.030 0.020 0.0012
45 748,733.76 5.4500 0.030 0.020 0.0012
52 764,017.07 6.3800 0.030 0.020 0.0012
54 703,339.68 5.7900 0.030 0.020 0.0012
59 693,284.52 5.7500 0.030 0.020 0.0012
64 617,595.24 5.7700 0.030 0.020 0.0012
65 632,288.52 6.2000 0.030 0.020 0.0012
66 665,316.84 6.1300 0.030 0.020 0.0012
68 579,943.44 5.6200 0.030 0.020 0.0012
69 458,257.50 5.5800 0.030 0.020 0.0012
71 546,819.00 5.7600 0.030 0.020 0.0012
78 535,551.72 5.9300 0.030 0.020 0.0012
80 540,994.56 6.1500 0.030 0.020 0.0012
81 525,569.28 5.8800 0.030 0.020 0.0012
83 548,516.88 6.4100 0.030 0.020 0.0012
84 519,027.12 5.8900 0.030 0.020 0.0012
96 448,183.92 5.7500 0.030 0.020 0.0012
98 464,499.24 6.2300 0.030 0.020 0.0012
102 411,453.72 5.7900 0.030 0.020 0.0012
104 409,118.64 6.1100 0.030 0.020 0.0012
105 409,401.36 6.1500 0.030 0.020 0.0012
111 385,832.40 6.2900 0.030 0.020 0.0012
118 339,043.08 5.6400 0.030 0.020 0.0012
123 361,157.76 5.8200 0.030 0.020 0.0012
124 344,700.84 6.1800 0.030 0.020 0.0012
125 313,635.60 5.6800 0.030 0.020 0.0012
129 309,975.60 5.6500 0.030 0.020 0.0012
135 286,805.40 5.7400 0.030 0.020 0.0012
136 292,367.28 6.0200 0.030 0.020 0.0012
137 263,796.36 5.6700 0.030 0.020 0.0012
140 264,425.16 6.3000 0.030 0.020 0.0012
146 244,551.36 6.1700 0.030 0.020 0.0012
147 233,940.36 5.8600 0.030 0.020 0.0012
150 217,693.32 6.0800 0.030 0.020 0.0012
154 199,364.76 5.7400 0.030 0.020 0.0012
155 203,748.36 5.9900 0.030 0.020 0.0012
159 151,949.80 5.8600 0.030 0.020 0.0012
162 186,440.04 6.0500 0.030 0.020 0.0012
177 190,782.12 8.2000 0.030 0.020 0.0012
176 142,628.04 5.9700 0.030 0.020 0.0012
NET MONTHLY
ADMIN. MORTGAGE PAYMENT MATURITY/ AMORT
LOAN # FEE % RATE % ACCRUAL TYPE TERM DATE REM. TERM ARD DATE TERM REM. AMORT
------------------------------------------------------------------------------------------------------------------------------------
8 0.0612 5.69880 Actual/360 120 1 119 5/1/2016 360 360
10 0.0512 5.54880 Actual/360 120 1 119 5/1/2016 360 359
18 0.0512 5.25880 Actual/360 120 1 118 4/1/2016 360 360
22 0.0512 5.18880 30/360 120 1 117 3/1/2016 0 0
28 0.0612 5.38880 Actual/360 120 1 117 3/1/2016 360 360
29 0.0512 6.24880 Actual/360 120 1 120 6/1/2016 360 360
29.01
29.02
30 0.0512 5.41880 Actual/360 120 1 118 4/1/2016 360 358
34 0.0512 6.14880 Actual/360 120 1 120 6/1/2016 360 360
38 0.0712 5.53880 Actual/360 120 1 119 5/1/2016 360 360
39 0.0512 5.30880 Actual/360 120 1 119 5/1/2016 360 359
41 0.0512 5.43880 Actual/360 120 1 117 3/1/2016 360 357
45 0.0612 5.38880 Actual/360 120 1 117 3/1/2016 360 360
52 0.0512 6.32880 Actual/360 121 1 121 7/1/2016 360 360
54 0.0512 5.73880 Actual/360 120 1 119 5/1/2016 360 359
59 0.1012 5.64880 Actual/360 120 1 119 5/1/2016 360 359
64 0.1012 5.66880 Actual/360 120 1 117 3/1/2016 360 357
65 0.0512 6.14880 Actual/360 120 1 120 6/1/2016 360 360
66 0.0512 6.07880 Actual/360 120 1 118 4/1/2016 300 298
68 0.0712 5.54880 Actual/360 120 1 119 5/1/2016 360 360
69 0.0512 5.52880 Actual/360 120 1 117 3/1/2016 0 0
71 0.0512 5.70880 Actual/360 120 1 120 6/1/2016 360 360
78 0.1012 5.82880 Actual/360 120 1 119 5/1/2016 360 360
80 0.1012 6.04880 Actual/360 120 1 119 5/1/2016 360 360
81 0.0512 5.82880 Actual/360 120 1 119 5/1/2016 360 359
83 0.0512 6.35880 Actual/360 120 1 120 6/1/2016 360 360
84 0.0512 5.83880 Actual/360 120 1 118 4/1/2016 360 358
96 0.0512 5.69880 Actual/360 120 1 119 5/1/2016 360 359
98 0.0512 6.17880 Actual/360 120 1 120 6/1/2016 360 360
102 0.1012 5.68880 Actual/360 84 1 78 12/1/2012 360 354
104 0.0512 6.05880 Actual/360 120 1 120 6/1/2016 360 360
105 0.0512 6.09880 Actual/360 121 1 121 7/1/2016 360 360
111 0.0512 6.23880 Actual/360 120 1 120 6/1/2016 360 360
118 0.0712 5.56880 Actual/360 120 1 119 5/1/2016 360 360
123 0.0512 5.76880 Actual/360 120 1 117 3/1/2016 300 297
124 0.0512 6.12880 Actual/360 120 1 119 5/1/2016 360 359
125 0.0512 5.62880 Actual/360 120 1 117 3/1/2016 360 360
129 0.0512 5.59880 Actual/360 120 1 116 2/1/2016 360 356
135 0.0512 5.68880 Actual/360 120 1 116 2/1/2016 360 356
136 0.0512 5.96880 Actual/360 120 1 118 4/1/2016 360 358
137 0.0512 5.61880 Actual/360 120 1 118 4/1/2016 360 360
140 0.0512 6.24880 Actual/360 121 1 121 7/1/2016 360 360
146 0.0512 6.11880 Actual/360 120 1 118 4/1/2016 360 358
147 0.0512 5.80880 Actual/360 120 1 118 4/1/2016 360 360
150 0.1012 5.97880 Actual/360 120 1 119 5/1/2016 360 360
154 0.1012 5.63880 Actual/360 120 1 119 5/1/2016 360 360
155 0.0512 5.93880 Actual/360 120 1 118 4/1/2016 360 358
159 0.0512 5.80880 30/360 60 1 59 5/1/2011 0 0
162 0.0512 5.99880 Actual/360 120 1 120 6/1/2016 300 300
177 0.0512 8.14880 30/360 180 1 110 8/1/2015 300 230
176 0.0512 5.91880 Actual/360 120 1 119 5/1/2016 300 299
ARD
LOAN # TITLE TYPE ARD LOAN STEP UP
--------------------------------------------------------------------------------------------------------------------------
8 Fee
10 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
18 Fee
22 Fee
28 Fee
29 Fee
29.01 Fee
29.02 Fee
30 Fee
34 Leasehold Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
38 Fee
39 Fee
41 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
45 Fee
52 Fee
54 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
59 Fee
64 Fee
65 Leasehold Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
66 Fee
68 Fee
69 Fee
71 Fee/Leasehold
78 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
80 Fee
81 Fee
83 Fee
84 Leasehold
96 Fee
98 Fee
102 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
104 Fee
105 Fee
111 Fee
118 Fee
123 Fee
124 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
125 Fee
129 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
135 Fee
136 Fee
137 Fee
140 Fee
146 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
147 Fee
150 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
154 Fee
155 Fee Yes Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%.
159 Fee
162 Fee
177 Fee
176 Fee
PARTIAL
ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF LOCKBOX
LOAN # INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT TYPE
--------------------------------------------------------------------------------------------------------------------------
8 No
10 No None at Closing, Springing Hard
18 Xx
00 Xx
00 Xx
00 Xx
29.01 No
29.02 Xx
00 Xx
00 Xx Xxxx at Closing, Springing Hard
38 Xx
00 Xx
00 Xx Xxxx at Closing, Springing Hard
45 Xx
00 Xx
00 Xx Xxxx at Closing, Springing Hard
59 Xx
00 Xx
00 Xx Xxxx at Closing, Springing Hard
66 Xx
00 Xx
00 Xx
00 Xx
00 Xx None at Closing, Springing Hard
80 Xx
00 Xx
00 Xx Xxxx
00 Xx
00 Xx Yes
98 No
102 No None at Closing, Springing Hard
104 No
105 No Yes
111 No
118 No
123 No
124 No None at Closing, Springing Hard
125 No
129 No Hard
135 Xx
000 Xx
000 Xx
000 Xx
000 Xx Yes Hard
147 No
150 No None at Closing, Springing Hard
154 No
155 No Yes Hard
159 No
162 No
177 No
176 No
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
HOLDBACK ENGINEERING CAPEX TI/LC RE TAX INS. OTHER
LOAN # AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
--------------------------------------------------------------------------------------------------------------------------------
8 230,538
10 430,000 3,667 57,703 24,589
18 613,000 467 8,015 663,000
22 77,602
28 4,700 57,374
29 115,000 100,000 3,167
29.01
29.02
30 2,334 7,695 37,441
34 1,280 68,250 17,916
38 874 2,500 139,422
39
41
45 4,200 75,554
52 3,060 9,000 73,003 36,556 2,030,000
54 620 4,258 160,000
59 904 2,778 16,279
64 772 4,104
65 730 16 16,877
66 1,179 6,850 30,161 10,621
68 3,250,000
69 683 225,000
71 68,663 34,639 2,110
78 48,213 150,000 66,379
80 915 400,000 22,276 3,000
81 4,402 49,502 7,104
83 856,250 1,232 17,017 1,602 856,250
84 1,858 8,339 18,439
96 2,167 20,886 4,349 140,500
98 1,008 4,343 6,294
102 18,750 1,858 5,448 1,957 308,600
104 2,604 16,341 10,068
105 22,063 255,000
111 1,534
118 833 32,319
123 94,613 3,100 10,150 7,336
124 307 1,685 4,716 1,023 250
125 2,436
129
135 3,500 16,166 22,504
136 342 2,161 26,271 160,000
137 90 1,835 1,660 732
140 996 2,000 7,046
146 150,000
147 138 10,459
150 331 833 5,369 1,142
154 3,824 1,270
155 20,000
159
162 176 11,664 1,559 1,875
177
176 35,000 13,657 8,397
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX CAPEX TI/LC TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------------------------------------------------------------------------------------------------------------------------------------
8 46,108 5
10 3,667 132,000 14,426 4,098 5
18 156 2,004 5
22 77,602 5
28 4,700 169,200 19,125 5
29 115,000 100,000 18,791 3,167 5
29.01
29.02
30 2,334 7,695 3,404 5
34 1,280.00 13,650 2,559 5
38 874 31,455 2,500 120,000 23,237 5
39 5
41 5
45 4,200 151,200 18,888 5
52 3,060.42 90,000 9,000 324,000 10,429 3,199 5
54 620 1,064 5
59 904 32,544 2,778 300,000 1,809 5
64 772 27,792 6,610 821 5
65 730.00 5 2,411 5
66 1,179 45,000 6,850 200,000 15,081 1,770 5
68 5
69 683 5,558 5
71 9,998 6,928 2,110 5
78 48,213 150,000 16,595 5
80 915 400,000 11,138 1,500 5
81 4,402 158,460 9,900 1,015 5
83 1,232.00 29,568 5,672 801 5
84 1,858 54,440 5,036 1,676 5
96 2,167 3,481 2,174 5
98 1,008 30,240 4,343 899 5
102 1,858 66,905 5,448 979 5
104 2,865.00 2,724 2,014 5
105 5
111 256 5
118 833 40,000 6,464 5
123 3,100 3,516 2,030 5
124 307 1,685 4,716 512 250 5
125 2,862 5
129 5
135 3,500 8,083 3,215 5
136 342 12,327 2,161 77,802 8,757 5
137 90 1,835 66,000 1,660 366 5
140 995.58 35,841 2,000 216,000 7,046 5
146 5
147 138 3,486 5
150 331 11,916 833 50,000 2,685 381 10
154 39,453 3,824 254 5
155 5
159 5
162 176.00 2,026 390 5
177 5
176 35,000 2,276 700 5
SCHEDULE III
FIRST TWO PAGES OF THE JUNE 15, 2006 FREE WRITING PROSPECTUS
[Attached]
