EXHIBIT 99.4
MORTGAGE LOAN PURCHASE AGREEMENT
PRUDENTIAL LOANS
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
December 1, 2006, between Prudential Mortgage Capital Funding, LLC (the
"Seller"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of December 1, 2006, between the Purchaser, as
depositor, Capmark Finance Inc. as General Master Servicer, Prudential Asset
Resources, Inc. as Prudential Master Servicer, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association as Paying Agent and Certificate
Registrar and ▇▇▇▇▇ Fargo Bank, N.A. as Trustee. In exchange for the Mortgage
Loans and certain other mortgage loans (the "Other Mortgage Loans") to be
purchased by the Purchaser, the Trust will issue to the Depositor pass-through
certificates to be known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ12 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-NM, Class A-3,
Class A-AB, Class A-4, Class A-M, Class A-MFL, Class A-J, Class B, Class C,
Class D, Class E and Class F Certificates (the "Public Certificates") will be
sold by the Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, LaSalle Financial
Services, Inc., Greenwich Capital Markets, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated and SunTrust Capital Markets Inc. (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated December 14, 2006 (the "Underwriting Agreement"),
and the Class X-1, Class X-2, Class X-W, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated December 14, 2006 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated December 14, 2006, as supplemented by a Prospectus Supplement dated
December 14, 2006 (together, the "Prospectus Supplement"), and the Initial
Purchaser will offer the Private Certificates (other than the Class EI, Class
R-I, Class R-II and Class R-III Certificates) for sale in transactions exempt
from the registration requirements of the Securities Act of 1933 pursuant to a
Private Placement Memorandum, dated as of December 14, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of December 2006. The Mortgage Loans will have an aggregate principal balance as
of the close of business on the Cut-Off Date, after giving effect to any
payments due on or before such date, whether or not received, of $2,730,307,529.
The sale of the Mortgage Loans shall take place on December 21, 2006 or such
other date as shall be mutually acceptable to the parties hereto (the "Closing
Date"). The purchase price to be paid by the Purchaser for the Mortgage Loans
shall equal the amount set forth as such purchase price on Exhibit 3 hereto. The
purchase price shall be paid to the Seller by wire transfer in immediately
available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated December 21, 2006, will be executed by the Seller and the General Master
Servicer, in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of the Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the requirements
of this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the Special Servicer to empower
the Trustee, the applicable Master Servicer and, in the event of the failure or
incapacity of the Trustee and the applicable Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage Files (so long as original
counterparts have previously been delivered to the Trustee). The Seller agrees
to reasonably cooperate with the Trustee, the applicable Master Servicer and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the Seller, but in no event earlier than 18 months
from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the Seller's expense, after the periods set forth
above; provided, however, the Trustee shall not submit such assignments for
recording if the Seller produces evidence that it has sent any such assignment
for recording and certifies that the Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, the Seller shall deliver to or on behalf of the Trustee each
of the remaining documents or instruments specified below (with such exceptions
and additional time periods as are permitted by this Section) with respect to
each Mortgage Loan (each, a "Mortgage File"). (The Seller acknowledges that the
term "without recourse" does not modify the duties of the Seller under Section 5
hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of ▇▇▇▇▇ Fargo
Bank, N.A. as Trustee for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ12, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "▇▇▇▇▇ Fargo Bank, N.A., as Trustee for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ12";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "▇▇▇▇▇ Fargo Bank, N.A. as Trustee for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-IQ12," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000.
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above (with recording information in blank if such
information is not yet available). Within 15 days following the Closing Date,
the Seller shall deliver and the Purchaser, the Trustee or the agents of either
may submit or cause to be submitted for filing, at the expense of the Seller, in
the appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause (i) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 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, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-313
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
limited liability company in good standing under the laws of Delaware.
The Seller has the requisite power and authority and legal right to own
the Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, 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 in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization, limited
liability company operating agreement or by-laws, (B) any term or
provision of any material agreement, contract, instrument or indenture
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) after giving effect to the consents or taking
of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its
assets, except where in any of the instances contemplated by clauses (B)
or (C) above, any conflict, breach or default, or creation or imposition
of any lien, charge or encumbrance, will not have a material adverse
effect on the consummation of the transactions contemplated hereby by
the Seller or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser.
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(vii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(viii) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ix) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or
the consummation by the Purchaser of any transaction contemplated hereby
that has not been obtained or made by the Purchaser.
(xi) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(xii) The Purchaser's execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement will
not constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(xiii) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(xiv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure period),
is not properly executed or is defective on its face, or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans (each, a "Cross-Collateralized Loan" and
collectively, the "Crossed Group") in the Trust and (iii) the applicable
document defect or breach does not constitute a Material Document Defect or
Material Breach, as the case may be, as to such other Mortgage Loans included in
the Crossed Group (without regard to this paragraph), then the applicable
document defect or breach (as the case may be) shall be deemed to constitute a
Material Document Defect or Material Breach, as the case may be, as to each such
other Mortgage Loan included in the Crossed Group for purposes of the above
provisions, and the Seller shall be obligated to repurchase or replace each such
other Mortgage Loan included in the Crossed Group in accordance with the
provisions above, unless, in the case of such breach or document defect, both of
the following conditions would be satisfied if the Seller were to repurchase or
replace only those Mortgage Loans as to which a Material Breach had occurred
without regard to this paragraph (the "Affected Loan(s)"): (1) the debt service
coverage ratio for all such other Mortgage Loans included in the Crossed Group
(excluding the Affected Loan(s)) for the four calendar quarters immediately
preceding the repurchase or replacement (determined as provided in the
definition of Debt Service Coverage Ratio in the Pooling and Servicing
Agreement, except that net cash flow for such four calendar quarters, rather
than year-end, shall be used) is at least equal to the greater of (x) the
weighted average debt service coverage ratio for all such Mortgage Loans in the
Crossed Group (including the Affected Loan(s)) set forth under the heading "NCF
DSCR" in Appendix II to the Final Prospectus Supplement and (y) 1.25x, and (2)
the Loan-to-Value Ratio for all such other Mortgage Loans in the Crossed Group
(excluding the Affected Loan(s)) is not greater than the lesser of (x) the
current loan-to-value ratio for all such Mortgage Loans in the Crossed Group
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan in the Crossed Group will not result in an
Adverse REMIC Event.
With respect to any Cross-Collateralized Loan, to the extent that
the Seller is required to repurchase or substitute for such Mortgage Loan (each,
a "Repurchased Loan") in the manner prescribed above while the Trustee (as
assignee of the Purchaser) continues to hold any other Cross-Collateralized Loan
in the Crossed Group, the Seller and the Purchaser hereby agree to modify, prior
to such repurchase or substitution, the related Mortgage Loan documents in a
manner such that such affected Repurchased Loan, on the one hand, and any other
Crossed-Collateralized Loans in the Crossed Group held by the Trustee, on the
other, would no longer be cross-defaulted or cross-collateralized with one
another; provided that the Seller shall have furnished the Trustee, at the
expense of the Seller, a nondisqualification opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
nondisqualification opinion cannot be furnished, the Seller and the Purchaser
agree that such repurchase or substitution of only the Repurchased Loan,
notwithstanding anything to the contrary herein, shall not be permitted and the
Seller shall repurchase or substitute for the Repurchased Loan and all other
Crossed-Collateralized Loans in the Crossed Group. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the Special Servicer on its
behalf) shall give written notice within three Business Days to the Seller of
its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, 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 Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and 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.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's limited
liability company operating agreement and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of Delaware dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, 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 or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Delaware law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a 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 (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed ▇▇▇▇ of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated December 14, 2006.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related 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 (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (or
such other address as may hereafter be furnished in writing by the Purchaser),
or (ii) if to the Seller, addressed to the Seller at Prudential Mortgage Capital
Funding, LLC, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Center ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a), 5, 11 and 12 hereof may be assigned to
the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of the Purchaser. No owner of a Certificate
issued pursuant to the Pooling and Servicing Agreement shall be deemed a
successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of 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 the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
MS 2006-IQ12 MLPA (Prudential)
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Executive Director
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage
Mortgage CMSA Loan Cross-
Loan No. Loan No. CMSA Property No. Seller(1) Property Name(2) Loan Group Collateralization(2)
-------- -------- ----------------- --------- --------------------------------- ---------- --------------------
29 6 6-001 PMCF Rosslyn Heights 1 No
42 19 19-001 PMCF Columbus Park Apartments 2 No
20 Welsh Portfolio II No
43 20-001 PMCF Rivers Avenue Office (II) 1 ▇▇
▇▇ ▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇) 1 No
45 20-003 PMCF North Shore Warehouses (II) 1 No
46 20-004 PMCF ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (II) 1 No
47 20-005 PMCF ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (II) 1 No
51 24 24-001 PMCF ▇▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇▇ 2 No
60 28 28-001 PMCF Constitution Place 1 No
62 30 ▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ No
74 42 42-001 PMCF The Towers at 45th 1 No
88 54 54-001 PMCF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇
▇▇ 56 56-001 PMCF 600 Health Park 1 No
91 57 57-001 PMCF Companion at ▇▇▇▇▇▇ ▇▇▇▇▇ 2 No
100 60 60-001 PMCF Holiday Inn Select Appleton 1 No
109 68 68-001 PMCF Hampton Inn - Plano 1 No
136 95 95-001 PMCF Air Center Plaza 1 No
154 113 113-001 PMCF ▇▇▇▇▇▇▇▇▇ Palm Desert 1 No
173 132 132-001 PMCF FedEx Ground 1 No
174 133 133-001 PMCF Continental Ranch Shopping Center 1 No
199 157 157-001 PMCF ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ No
241 194 194-001 PMCF Fairfield Inn - Kalamazoo 1 No
244 197 197-001 PMCF Varsity Drive Industrial 1 No
Post IO Cut-Off Date LTV
Mortgage Cut-Off Date Period NCF Cut-Off Balloon Without Tax
Loan No. Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) DSCR(4) Date LTV(4) LTV(4) Credits(4)
-------- ---------------- ------------ ----------- ----------- ---------- ----------- ------- ----------------
29 $64,200,000 $64,200,000 1.50 1.47 NAP 63.1% 63.1% NAP
42 $24,000,000 $24,000,000 1.54 1.40 1.17 78.7% 71.0% NAP
$23,281,500 $23,281,500 1.66 1.52 1.27 79.4% 71.6% NAP
43 $12,880,000 $12,880,000 1.66 1.52 1.27 79.4% 71.6% NAP
44 $3,160,000 $3,160,000 1.66 1.52 1.27 79.4% 71.6% NAP
45 $2,700,000 $2,700,000 1.66 1.52 1.27 79.4% 71.6% NAP
46 $2,550,000 $2,550,000 1.66 1.52 1.27 79.4% 71.6% NAP
47 $1,991,500 $1,991,500 1.66 1.52 1.27 79.4% 71.6% NAP
51 $20,000,000 $20,000,000 1.50 1.46 1.20 62.5% 56.2% NAP
60 $17,500,000 $17,500,000 2.28 1.93 1.59 71.4% 64.1% NAP
62 $17,000,000 $17,000,000 1.54 1.48 1.22 67.7% 60.8% NAP
74 $12,000,000 $12,000,000 1.65 1.41 1.17 77.9% 68.8% NAP
88 $10,000,000 $10,000,000 1.59 1.46 NAP 80.0% 80.0% NAP
90 $9,650,000 $9,650,000 1.28 1.20 NAP 78.5% 67.3% NAP
91 $9,600,000 $9,600,000 1.55 1.49 1.22 80.0% 71.7% NAP
100 $9,000,000 $9,000,000 2.38 1.94 1.51 65.8% 55.5% NAP
109 $8,600,000 $8,600,000 1.52 1.36 NAP 71.7% 55.7% NAP
136 $6,575,000 $6,575,000 1.45 1.30 1.10 62.6% 56.6% NAP
154 $5,700,000 $5,700,000 1.27 1.22 NAP 78.6% 66.4% NAP
173 $5,000,000 $5,000,000 1.57 1.49 1.27 67.6% 60.1% NAP
174 $4,850,000 $4,850,000 1.52 1.45 1.23 69.7% 60.8% NAP
199 $4,125,000 $4,125,000 1.32 1.20 NAP 70.0% 59.1% NAP
241 $3,000,000 $3,000,000 1.76 1.52 NAP 68.2% 53.2% NAP
244 $2,850,000 $2,850,000 1.75 1.61 1.35 74.4% 67.2% NAP
Balloon
LTV
Without
Mortgage Tax
Loan No. Credits(4) Street Address City State Zip Code Property Type
-------- ---------- -------------------------------- ----------------- ----- --------- -------------
29 NAP ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
42 NAP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
NAP
43 NAP ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Office
44 NAP ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
45 NAP ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
46 NAP ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
47 NAP ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
51 NAP ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
60 NAP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Mixed Use
62 NAP 1330, ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Retail
74 NAP ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Office
88 NAP ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Retail
90 NAP ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Office
91 NAP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
100 NAP ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Hospitality
109 NAP ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Hospitality
136 NAP ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇ Retail
154 NAP ▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
173 NAP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
174 NAP ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Retail
199 NAP ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
241 NAP ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Hospitality
244 NAP ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Industrial
Percent Leased
Mortgage As of Date
Loan No. Property Sub-Type Units/SF(5) Year Built Year Renovated Percent Leased(6) Date(6) Security Type(7)
-------- ----------------- ---------- ---------- ------------- ---------------- -------------- ----------------
29 Mid-Rise 366 1987-1989 2002-2006 96.5% 10/01/2006 Fee
42 Mid-Rise 622 1973 2006 96.3% 11/30/2006 Fee
43 Suburban 155,814 1984 1996 93.4% 10/03/2006 Fee
44 Warehouse 121,345 1973 NAP 100.0% 10/30/2006 Fee
45 Warehouse 106,000 1974 NAP 100.0% 10/30/2006 Fee
46 Warehouse 54,000 2000 NAP 100.0% 09/30/2006 Fee
47 Warehouse 45,000 2003 NAP 100.0% 09/30/2006 Fee
51 Garden 229 2005 NAP 99.1% 11/07/2006 Fee
60 Office/Retail 194,039 1957 1996-2000 91.1% 10/05/2006 Fee
62 Shadow Anchored 62,496 1972 2005 100.0% 11/01/2006 Fee
74 Suburban 111,405 1985 2005-2006 96.2% 09/28/2006 Fee
88 Anchored 109,405 1979 1985/1995 94.7% 11/17/2006 Fee
90 Medical 58,594 2006 NAP 84.1% 10/27/2006 Leasehold
91 Garden 144 2001 NAP 95.8% 10/24/2006 Fee
100 Full Service 228 1981-1985 2003-2004 66.0% 09/01/2006 Fee
109 Limited Service 131 1996 2001 67.7% 08/31/2006 Fee
136 Unanchored 51,908 1988 2005 84.5% 08/11/2006 Fee
154 Warehouse 52,164 2006 NAP 100.0% 11/27/2006 Fee
173 Warehouse 98,475 2006 NAP 100.0% 08/29/2006 Fee
174 Unanchored 21,600 2006 NAP 94.4% 07/31/2006 Fee
199 Warehouse 35,920 1974 1984 100.0% 09/08/2006 Fee
241 Limited Service 62 1998 2003/2005 67.9% 08/31/2006 Fee
244 Flex Industrial 46,720 1987-1988 2003-2005 100.0% 11/13/2006 Fee
Cut-Off Date First First
Mortgage Lien Balance per Unit Note Payment Date Payment
Loan No. Position Related Borrower List or SF Date(8) (P&I)(9) Date (IO)(9) Maturity Date Due Date
-------- -------- --------------------- ---------------- ---------- ------------ ------------ ------------- --------
29 First $175,410 10/31/2006 NAP 12/05/2006 11/05/2011 5
42 First $38,585 11/17/2006 01/05/2010 01/05/2007 12/05/2016 5
11/21/2006 01/05/2010 01/05/2007 12/05/2016
43 First $83 11/21/2006 01/05/2010 01/05/2007 12/05/2016 5
44 First $26 11/21/2006 01/05/2010 01/05/2007 12/05/2016 5
45 First $25 11/21/2006 01/05/2010 01/05/2007 12/05/2016 5
46 First $47 11/21/2006 01/05/2010 01/05/2007 12/05/2016 5
47 First $44 11/21/2006 01/05/2010 01/05/2007 12/05/2016 5
51 First $87,336 11/27/2006 01/05/2010 01/05/2007 12/05/2016 5
60 First $90 11/20/2006 01/05/2010 01/05/2007 12/05/2016 5
62 First $272 11/29/2006 01/05/2010 01/05/2007 12/05/2016 5
74 First $108 11/01/2006 12/01/2008 12/01/2006 11/01/2016 1
88 First $91 11/20/2006 NAP 01/05/2007 12/05/2016 5
90 First $165 11/17/2006 01/05/2007 NAP 12/05/2016 5
91 First $66,667 11/30/2006 01/05/2010 01/05/2007 12/05/2016 5
100 First $39,474 11/22/2006 07/05/2009 01/05/2007 12/05/2016 5
109 First $65,649 11/16/2006 01/05/2007 NAP 12/05/2016 5
136 First $127 10/19/2006 12/05/2009 12/05/2006 11/05/2016 5
154 First 154, 199 $109 11/29/2006 01/05/2007 NAP 12/05/2016 5
173 First $51 09/18/2006 11/05/2008 11/05/2006 10/05/2016 5
174 First $225 11/20/2006 01/05/2008 01/05/2007 12/05/2016 5
199 First 154, 199 $115 12/01/2006 01/05/2007 NAP 12/05/2016 5
241 First $48,387 11/21/2006 01/05/2007 NAP 12/05/2016 5
244 First $61 11/15/2006 01/05/2010 01/05/2007 12/05/2016 5
Remaining Original Remaining
Mortgage Grace Original Term Term to Amort. Amort.
Loan No. Period(10) ARD Loan Lockbox Status Lockbox Type to Maturity Maturity Term (11) Term
-------- ---------- -------- --------------------------- ------------ ------------- --------- --------- ---------
29 0 No In Place Soft, Springing to Hard 60 59 IO IO
42 0 No None NAP 120 120 360 360
120 120 360 360
43 0 No None NAP 120 120 360 360
44 0 No None NAP 120 120 360 360
45 0 No None NAP 120 120 360 360
46 0 No None NAP 120 120 360 360
47 0 No None NAP 120 120 360 360
51 0 No None NAP 120 120 360 360
60 0 No None NAP 120 120 360 360
62 0 No None NAP 120 120 360 360
74 5 No None NAP 120 119 360 360
88 0 Yes Springing Hard 120 120 IO IO
90 0 No Springing Hard 120 120 360 360
91 0 No None NAP 120 120 360 360
100 0 No None NAP 120 120 300 300
109 0 No In Place Hard 120 120 300 300
136 0 No None NAP 120 119 360 360
154 0 Yes Springing Hard 120 120 360 360
173 0 No Springing Hard 120 118 360 360
174 0 No None NAP 120 120 360 360
199 0 Yes Springing Hard 120 120 360 360
241 0 No None NAP 120 120 300 300
244 0 No None NAP 120 120 360 360
Second Most
Mortgage Mortgage Monthly Monthly Third Most Third Most Recent Second Most Recent NOI End
Loan No. Rate Payment (P&I) Payment (IO) Recent NOI NOI End Date Recent NOI Date
-------- -------- ------------- ------------ ----------- ------------------ ------------ --------------
29 5.570% NAP $302,134 $4,578,078 12/31/2004 $5,150,051 12/31/2005
42 5.820% $141,127 $118,017 $863,265 12/31/2004 $597,857 12/31/2005
5.770% $136,160 $113,500
43 5.770% $75,328 $62,791 NAP NAP $1,048,759 12/31/2005
44 5.770% $18,481 $15,405 $260,038 12/31/2004 $176,344 12/31/2005
45 5.770% $15,791 $13,163 $248,576 12/31/2004 $267,019 12/31/2005
46 5.770% $14,914 $12,432 $248,658 12/31/2004 $249,521 12/31/2005
47 5.770% $11,647 $9,709 $152,778 12/31/2004 $164,063 12/31/2005
51 5.630% $115,194 $95,137 NAP NAP NAP NAP
60 5.600% $100,464 $82,801 $2,153,952 12/31/2004 $2,298,740 12/31/2005
62 5.550% $97,058 $79,717 $591,777 12/31/2004 $443,838 12/31/2005
74 5.740% $69,953 $58,197 NAP NAP $739,149 12/31/2005
88 5.540% NAP $46,808 NAP NAP NAP NAP
90 6.340% $59,983 NAP NAP NAP NAP NAP
91 5.490% $54,448 $44,530 $750,079 12/31/2004 $905,096 12/31/2005
100 5.830% $57,055 $44,332 $937,739 12/31/2004 $865,446 12/31/2005
109 6.010% $55,463 NAP $543,820 12/31/2004 $842,960 12/31/2005
136 5.940% $39,167 $32,998 NAP NAP $490,179 12/31/2005
154 5.770% $33,336 NAP NAP NAP NAP NAP
173 6.090% $30,267 $25,727 NAP NAP NAP NAP
174 6.150% $29,548 $25,201 NAP NAP NAP NAP
199 5.770% $24,125 NAP NAP NAP NAP NAP
241 6.150% $19,605 NAP $322,413 12/31/2004 $366,043 12/31/2005
244 5.870% $16,850 $14,135 NAP NAP $104,648 12/31/2005
Mortgage Most Recent Most Recent NOI Underwritten Underwritten Underwritable Underwritten Underwritable Balloon
Loan No. NOI End Date EGI Expenses NOI Reserves Cash Flow Balance
-------- ------------ ---------------- ------------ ------------ ------------- ------------ ------------- -----------
29 $5,202,976 T-12 (07/31/2006) $8,085,820 $2,655,284 $5,430,536 $109,800 $5,320,736 $64,200,000
T-4 (04/30/2006)
42 $2,490,705 ▇▇▇. $4,240,338 $2,066,281 $2,174,057 $190,418 $1,983,639 $21,647,955
$2,994,585 $714,396 $2,263,360 $84,574 $2,067,694 $20,979,260
43 $1,263,331 T-12 (08/31/06) $1,687,693 $397,990 $1,272,874 $35,837 $1,175,385 $11,606,334
T-3 (03/30/2006)
44 $92,212 ▇▇▇. $416,351 $102,087 $314,264 $18,202 $284,022 $2,847,517
T-3 (03/30/2006)
45 $261,052 ▇▇▇. $349,527 $86,689 $262,838 $15,685 $227,063 $2,433,005
T-6 (06/30/2006)
46 $272,239 ▇▇▇. $293,778 $65,135 $228,643 $8,100 $215,109 $2,297,838
T-6 (06/30/2006)
47 $197,350 ▇▇▇. $247,236 $62,495 $184,741 $6,750 $166,115 $1,794,566
T-9 (09/30/2006)
51 $1,286,165 ▇▇▇. $2,752,530 $1,042,423 $1,710,107 $45,800 $1,664,307 $17,972,222
60 $2,143,031 T-12 (07/31/2006) $4,068,932 $1,807,945 $2,260,987 $68,984 $1,919,991 $15,716,233
62 $776,456 T-12 (09/30/2006) $1,919,961 $444,577 $1,475,383 $12,499 $1,417,750 $15,251,820
74 $706,132 T-12 (08/31/2006) $1,738,012 $586,707 $1,151,305 $33,452 $983,614 $10,588,079
T-8 (08/31/2006)
88 $714,047 ▇▇▇. $1,126,435 $234,951 $891,484 $21,881 $822,266 $10,000,000
90 NAP NAP $1,304,556 $385,112 $919,444 $11,719 $863,482 $8,281,842
91 $890,689 T-12 (09/30/2006) $1,321,429 $493,355 $828,073 $30,816 $797,257 $8,602,316
100 $1,274,355 T-12 (09/30/2006) $5,848,102 $4,580,893 $1,267,209 $233,924 $1,033,285 $7,587,657
109 $1,052,803 T-12 (08/31/2006) $2,710,538 $1,697,622 $1,012,916 $108,422 $904,495 $6,684,577
136 $563,819 T-12 (08/31/2006) $779,052 $203,630 $575,422 $21,458 $516,451 $5,943,221
154 NAP NAP $651,056 $141,477 $509,578 $7,825 $487,932 $4,811,617
173 NAP NAP $703,869 $218,066 $485,803 $14,771 $459,466 $4,447,725
174 NAP NAP $588,110 $128,764 $459,346 $3,240 $437,872 $4,233,470
199 NAP NAP $513,686 $131,234 $382,452 $8,980 $348,404 $3,482,091
241 $413,143 T-12 (08/31/2006) $1,260,721 $847,079 $413,642 $54,904 $358,738 $2,342,697
244 $240,679 T-12 (08/31/2006) $410,265 $113,870 $296,395 $7,008 $272,638 $2,573,205
Source Market Study
Mortgage Current of Capitalization Valuation Lease
Loan No. Value(12) Value(12) Rate(12) Date Largest Tenant(12) Expiration Date % NSF
-------- ------------ ---------- -------------- ---------- ---------------------------------- --------------- ---------
29 $101,800,000 Appraisal NAP 09/26/2006 NAP NAP NAP
42 $30,500,000 Appraisal NAP 10/06/2006 NAP NAP NAP
$29,340,000
43 $16,100,000 Appraisal NAP 10/24/2006 PST Services, Inc. 08/31/2015 37.5%
44 $3,950,000 Appraisal NAP 10/25/2006 Eastern Wire Products 11/30/2016 67.0%
45 $3,390,000 Appraisal NAP 10/25/2006 Iron Mountain Incorporated 07/31/2009 52.8%
46 $3,200,000 Appraisal NAP 10/25/2006 ▇▇▇▇▇ Incorporated 12/31/2016 100.0%
47 $2,700,000 Appraisal NAP 10/25/2006 Flip n Twist Gymnastics 03/31/2012 55.6%
51 $32,000,000 Appraisal NAP 09/29/2006 NAP NAP NAP
60 $24,500,000 Appraisal NAP 09/26/2006 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc. 02/28/2011 7.7%
62 $25,100,000 Appraisal NAP 10/31/2006 Sport Chalet 05/19/2016 64.4%
74 $15,400,000 Appraisal NAP 09/19/2006 Utah Medical Association 09/30/2016 19.8%
88 $12,500,000 Appraisal NAP 10/22/2006 Kroger's 10/31/2013 41.3%
Surgery Center at Health Park,
90 $12,300,000 Appraisal NAP 08/01/2006 LLC 06/30/2016 32.9%
91 $12,000,000 Appraisal NAP 10/26/2006 NAP NAP NAP
100 $13,675,000 Appraisal NAP 09/01/2008 NAP NAP NAP
109 $12,000,000 Appraisal NAP 10/19/2006 NAP NAP NAP
136 $10,500,000 Appraisal NAP 08/28/2006 International Academy of Style 06/30/2009 12.5%
154 $7,250,000 Appraisal NAP 12/01/2006 ▇▇▇▇▇▇▇▇▇ Tile 10/31/2021 100.0%
173 $7,400,000 Appraisal NAP 08/04/2006 FedEx Ground Package Systems Inc. 04/30/2016 100.0%
174 $6,960,000 Appraisal NAP 08/05/2006 RE/MAX All Executives 09/27/2013 22.2%
199 $5,890,000 Appraisal NAP 11/07/2006 White Cap Industries 03/31/2007 100.0%
241 $4,400,000 Appraisal NAP 10/09/2006 NAP NAP NAP
244 $3,830,000 Appraisal NAP 10/16/2006 Gymquest of Lisle, LLC 08/31/2012 42.6%
Lease Insurance
Mortgage Second Largest Expiration Third Largest Lease Escrow in Tax Escrow
Loan No. Tenant(13) Date % NSF Tenant(13) Expiration Date % NSF Place in Place(14)
--------- ---------------------- ----------- -------- ------------- --------------- ----- ---------- ------------
29 NAP NAP NAP NAP NAP NAP Yes Yes
42 NAP NAP NAP NAP NAP NAP Yes Yes
Dial America
Palmetto Technical Marketing,
43 College 12/31/2015 21.5% Inc. 03/27/2017 19.7% Yes Yes
44 Pack-M LLC 12/31/2013 33.0% NAP NAP NAP Yes Yes
BellSouth
45 Telecommunications 09/30/2007 47.2% NAP NAP NAP Yes Yes
46 NAP NAP NAP NAP NAP NAP Yes Yes
47 Tosca, Ltd. 09/30/2007 44.4% NAP NAP NAP Yes Yes
51 NAP NAP NAP NAP NAP NAP No No
Plaintiff's
60 SHPS 12/31/2006 7.4% Legal Comm. 03/31/2008 4.6% No No
Taco ▇▇▇▇
62 Wilshire Warehouse 08/14/2010 8.0% (Pad) 05/31/2013 5.8% Yes Yes
74 Staff Care, Inc. 08/31/2008 12.0% ▇▇ ▇▇▇▇▇▇▇ 06/30/2009 10.1% Yes Yes
88 ▇▇▇▇▇▇▇▇▇ Hardware 08/31/2011 9.2% Dollar General 01/31/2009 9.1% Yes Yes
Genesys
Integrated
The Center for Practice,
Gastrointestinal P.C. -
Health at Health Diagnostic
90 Park, LLC 06/30/2016 20.7% Services 06/30/2026 16.9% Yes Yes
91 NAP NAP NAP NAP NAP NAP Yes Yes
100 NAP NAP NAP NAP NAP NAP Yes Yes
109 NAP NAP NAP NAP NAP NAP Yes Yes
West Coast
136 Sneakers 06/30/2008 6.2% Martial Arts 04/30/2008 5.8% Yes Yes
154 NAP NAP NAP NAP NAP NAP No No
173 NAP NAP NAP NAP NAP NAP Yes No
174 Anytime Fitness 09/27/2011 19.4% The Dugout 09/27/2016 13.9% Yes Yes
199 NAP NAP NAP NAP NAP NAP No No
241 NAP NAP NAP NAP NAP NAP Yes Yes
Mountain
Horizons, LLC
LeSaut, LLC (Pump It (Cabinets by
244 Up) 06/30/2010 32.2% Design) 01/01/2012 25.2% Yes Yes
Capital
Expenditure Initial Capital Monthly TI/LC
Mortgage Escrow in TI/LC Escrow Other Escrow Springing Escrow Expenditure Escrow Escrow
Loan No. Place(15) in Place(16) Description(17) Description(18) Requirement(19) Requirement(23)
-------- ----------- ------------ ---------------- ---------------- ------------------ ---------------
29 Yes No NAP NAP $0 $0
Rent Achievement
42 Yes No Letter of Credit NAP $0 $0
43 No Yes NAP NAP $0 $6,037
44 No Yes NAP NAP $0 $1,155
45 No Yes NAP NAP $0 $1,928
46 No Yes NAP NAP $0 $521
47 No Yes NAP NAP $0 $1,140
51 No No NAP NAP $0 $0
60 No No NAP NAP $0 $0
62 No No NAP NAP $0 $0
Roof and HVAC
Letter of Credit -
74 Yes Yes NAP NAP $325,000 $0
88 Yes Yes NAP NAP $0 $3,009
Occupancy
Reserve -
$950,000;
Carve-out Letter
of Credit -
90 Yes Yes $750,000 NAP $0 $3,334
91 Yes No NAP NAP $0 $0
Performance
Holdback -
$1,000,000;
Seasonality PIP Completion
100 Yes No Reserve - $41,000 NAP Reserve - $1,150,000 $0
109 Yes No NAP NAP $0 $0
136 Yes Yes Holdback Reserve NAP $0 $0
154 No No NAP NAP $0 $0
173 Yes Yes NAP NAP $0 $1,000
Pizza Hut
174 No Yes Holdback Reserve NAP $0 $1,500
199 No No NAP NAP $0 $0
PIP Holdback -
241 Yes No NAP NAP $158,000 $0
244 Yes Yes Holdover Reserve NAP $0 $1,396
Current.
Capital Current
Expenditure Initial Monthly TI/LC TI/LC Interest
Mortgage Escrow TI/LC Escrow Escrow Escrow Environmental Accrual
Loan No. Balance(21) Requirement(22) Requirement(23) Balance(24) Insurance Method Seasoning(25)
------------ ----------- --------------- --------------- ----------- ------------- ---------- -------------
29 $55,625 $0 $0 $0 No Actual/360 1
42 $122,590 $0 $0 $0 No Actual/360 0
$168,008.01
$168,000 on on a
a combined combined
portfolio portfolio
43 $0 basis $6,037 basis No Actual/360 0
$168,008.01
$168,000 on on a
a combined combined
portfolio portfolio
44 $0 basis $1,155 basis No Actual/360 0
$168,008.01
$168,000 on on a
a combined combined
portfolio portfolio
45 $0 basis $1,928 basis No Actual/360 0
$168,008.01
$168,000 on on a
a combined combined
portfolio portfolio
46 $0 basis $521 basis No Actual/360 0
$168,008.01
$168,000 on on a
a combined combined
portfolio portfolio
47 $0 basis $1,140 basis No Actual/360 0
51 $0 $0 $0 $0 No Actual/360 0
60 $0 $0 $0 $0 No Actual/360 0
62 $0 $0 $0 $0 No Actual/360 0
Leasing
Letter of
Credit -
$350,000;
Free Rent
and UMA
Letter of
Credit -
74 $327,788 $832,000 $0 $1,182,000 No Actual/360 1
East End
Pediatric
Rent Reserve
- $8,250.00;
Japanese
Express Rent
Reserve -
88 $0 $3,753.75; $3,009 $71,046 No Actual/360 0
H&R Block
Rent Reserve
-
$39,334.56;
Insurance
Doctor Rent
Reserve -
$19,708
Leasing
Reserve
Letter of
Credit -
$100,000;
Tenant
Improvement
Reserve -
90 $0 $190,025 $3,334 $290,058 No Actual/360 0
91 $17,500 $0 $0 $0 No Actual/360 0
100 $1,150,000 $0 $0 $0 No Actual/360 0
109 $0 $0 $0 $0 No Actual/360 0
136 $1,788 $63,000 $0 $63,039 No Actual/360 1
154 $0 $0 $0 $0 No Actual/360 0
173 $2,462 $0 $1,000 $2,000 No Actual/360 2
Tenant
Improvement
Allowance
Reserve -
174 $0 $168,748 $1,500 $168,772 No Actual/360 0
199 $0 $0 $0 $0 No Actual/360 0
241 $158,000 $0 $0 $0 No Actual/360 0
244 $0 $0 $1,396 $0 No Actual/360 0
Prepayment Code(26)
--------------------------------------------------------------------------------------
Mortgage LO DEF DEF/YM1 YM1 YM2 YM 5% 4% 3% 2% 1% Open YM Formula(27)
Loan No.
-------- --- ------ --------- ----- ------ ---- ---- ---- ---- ---- --- ----- ---------------
29 26 30 4
42 25 93 2
25 93 2
43 25 93 2
44 25 93 2
45 25 93 2
46 25 93 2
47 25 93 2
51 25 93 2
60 25 91 4
62 25 93 2
74 48 68 4 F
88 25 93 2
90 25 93 2 F
91 25 91 4
100 25 93 2 F
109 25 93 2
136 26 92 2
154 25 91 4
173 27 91 2
174 25 93 2
199 25 91 4
241 25 93 2
244 35 82 3 F
Mortgage Administrative Mortgage
Loan No. CostRate(28) Loan No.
-------- --------------- ---------
29 2.075 29
42 7.075 42
2.075
43 2.075 43
44 2.075 44
45 2.075 45
46 2.075 46
47 2.075 47
51 2.075 51
60 2.075 60
62 5.075 62
74 2.075 74
88 2.075 88
90 2.075 90
91 2.075 91
100 2.075 100
109 2.075 109
136 2.075 136
154 7.075 154
173 2.075 173
174 2.075 174
199 7.075 199
241 9.075 241
244 2.075 244
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is true and correct in all material respects as of the date of
this Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, 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 of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. Upon the consummation of the transactions contemplated by this
Agreement, the Seller will have 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.
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. None of the Mortgage Loan documents restricts the Seller's
right to transfer the Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all of
the related Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged Property
operated as a hotel or an assisted living facility, the Mortgagor's personal
property includes all personal property that a prudent mortgage lender making a
similar Mortgage Loan would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, to the extent a
security interest may be so created therein, and such security interest is a
first priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases applicable
to such personal property. Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
(5) Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since December 14, 2006.
(7) Condition of Property; Condemnation. With respect to (i) the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report issued after the first day of the month that is 18 months
prior to the Closing Date as set forth on Schedule A to this Exhibit 2, each
Mortgaged Property is, to the Seller's knowledge, free and clear of any damage
(or adequate reserves therefor have been established based on the engineering
report) that would materially and adversely affect its value as security for the
related Mortgage Loan and (ii) the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an engineering report 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, each Mortgaged
Property is in good repair and condition and all building systems contained
therein are in good working order (or adequate reserves therefor have been
established) and each Mortgaged Property is free of structural defects, in each
case, that would materially and adversely affect its value as security for the
related Mortgage Loan as of the date hereof. The Seller has received no notice
of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage Loan,
all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's Title Policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, or any such funds so escrowed have not been
released.
(10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
(11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by 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 the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental site assessment after
the first day of the month that is 18 months prior to the Closing Date, an
environmental site assessment, or an update of a previous such report, was
performed with respect to each Mortgaged Property in connection with the
origination or the acquisition of the related Mortgage Loan, a report of each
such assessment (or the most recent assessment with respect to each Mortgaged
Property) (an "Environmental Report") has been delivered to the Purchaser, and
the Seller has no knowledge of any material and adverse environmental condition
or circumstance affecting any Mortgaged Property that was not disclosed in such
report. Each Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and regulations. Where
such assessment disclosed the existence of a material and adverse environmental
condition or circumstance affecting any Mortgaged Property, (i) a party not
related to the Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition is remediated
or (iii) the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan. In
connection with the origination of each Mortgage Loan, each environmental
consultant has represented in such Environmental Report or in a supplement
letter that the environmental assessment of the applicable Mortgaged Property
was conducted utilizing generally accepted Phase I industry standards using the
American Society for Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site assessment
meeting ASTM Standards after the first day of the month that is 18 months prior
to the Closing Date as set forth on Schedule A to this Exhibit 2, (i) no
Hazardous Material is present on such Mortgaged Property such that (1) the
value, use or operation of such Mortgaged Property is materially and adversely
affected or (2) under applicable federal, state or local law, (a) such Hazardous
Material could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred or (b) the presence of
such Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders of a
security interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and (ii) such Mortgaged
Property is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on the
value of such Mortgaged Property and neither Seller nor, to Seller's knowledge,
the related Mortgagor or any current tenant thereon, has received any notice of
violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance, material or waste as may be defined
as a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ▇▇.▇▇.
9601 et seq.), the Hazardous Materials Transportation Act as amended (42
U.S.C. ▇▇.▇▇. 6901 et seq.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the Federal Water Pollution
Control Act as amended (33 U.S.C. ▇▇.▇▇. 1251 et seq.), the Clean Air
Act as amended (42 U.S.C. ▇▇.▇▇. 1251 et seq.) and any regulations
promulgated pursuant thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related Mortgage
Loan, with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and the Trustee as its assignee upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(d) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto, and
the Seller has received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is effective
against the holder of the Mortgage unless a copy of such notice has been
delivered to such holder and the lessor has offered or is required to
enter into a new lease with such holder on terms that do not materially
vary from the economic terms of the Ground Lease.
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be applied
either (A) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by the
related Mortgage having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such cases where a
provision entitling a third party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property in
the lending area where the Mortgaged Property is located; and such
Ground Lease contains a covenant that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for any
reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage;
(j) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that
termination or cancellation without such consent may be binding on the
mortgagee if (i) an event of default occurs under the Ground Lease, (ii)
notice is provided to the mortgagee and (iii) such default is curable by
the mortgagee as provided in the Ground Lease but remains uncured beyond
the applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, except, in each case, for liens insured against by
the Title Policy referred to herein, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with 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. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
(33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in, and operation of,
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
(41) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the Lender incurred in connection with (i)
the defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until
a date that is more than two years after the Closing Date or provides that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) Authorized to do Business. To the extent required under applicable
law as of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage Loan operating statements and (if there is more than
one tenant) rent rolls and/or financial statements of the Mortgagor annually),
and such other information as may be required therein.
(46) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
Exception to Representation 13 (Loan Document Status)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
All Mortgage Loans With respect to all of the Mortgage Loans,
certain provisions contained in the Mortgage
Loan documents may be further limited or
rendered unenforceable by applicable law, but
(subject to the limitations set forth in the
representation) such limitations or
unenforceability will not render such
Mortgage Loan documents invalid as a whole or
substantially interfere with the mortgagee`s
realization of the principal benefits and/or
security provided thereby.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 14 (Insurance)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
All Mortgage Loans With respect to all of the Mortgage Loans,
notwithstanding the requirements and
standards set forth in paragraph 14(a) of the
representation, the Mortgage Loan documents
for each of the Mortgage Loans provides for a
fire and extended perils insurance policy in
amount not less than the lesser of the
principal balance of the related Mortgage
Loan and the replacement cost of the
improvements located at the Mortgaged
Property, and contains no provisions for a
deduction for depreciation, and not less than
the amount necessary to avoid the operation
of any co-insurance provisions with respect
to the Mortgaged Property. Additionally, with
respect to all the Mortgage Loans,
notwithstanding the requirements and
standards set forth in paragraph 14(d) of the
representation, the Mortgage Loan documents
for each of the Mortgage Loans provides for a
comprehensive general liability insurance
policy in an amount of not less than $1
million per occurrence.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 21 (Advancement of Funds by the Seller)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
All Mortgage Loans With respect to all of the Mortgage Loans,
the representation is true, except for (i)
interest accruing from the date of
origination of each of the Mortgage Loans or
the date of disbursement of Mortgage Loan
proceeds, whichever is later, to the date
which preceded by 30 days the first due date
under the related Mortgage Note, and (ii) any
amounts paid by a tenant as specifically
provided under a related lease.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 23 (Compliance with Laws)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
Loan No. 62 (Conejo Valley Plaza) A tenant at the Mortgaged Property is in
occupancy despite the fact that no
certificate of occupancy for such space has
been issued. The local government has
acknowledged that the approval process for
this particular certificate of occupancy has
been in process for months, and has agreed to
expedite the issuance of the certificate.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 25 (Releases of Mortgaged Property)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
Loan No. 42 (Columbus Park Apartments) The loan documents provide for a partial
release of a portion of Mortgaged Property
consisting of two vacant parcels: (1) a
39,000 square foot adjacent parcel and (2) a
47,700 square foot site one block north of
the primary collateral.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 29 (Local Law Compliance)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
Loan No. 136 (Air Center Plaza) The Seller obtained law and ordinance
insurance covering the improvements located
on the Mortgaged Property that are legal
non-conforming, although the coverage
obtained was less than the Seller typically
requires. However, the holder of the Mortgage
Loan has the right in connection with any
renewal of the borrower`s insurance policies
to require the borrower to obtain the
required coverage.
-----------------------------------------------------------------------------------------------
Loan No. 109 (Hampton Inn-Plano) A zoning consultant determined that the
Mortgaged Property would be legally
conforming if a meeting room at the Mortgaged
Property was converted to a business and
fitness center for existing hotel guests.
Currently, the Mortgaged Property does not
comply with local zoning laws because the
meeting room at the Mortgaged Property would
require an additional 29 parking spaces.
Pursuant to the post-closing agreement,
borrower is required to convert the meeting
room to a business and fitness center within
120 days of loan closing and to deliver the
documentation in connection therewith as
required by the post-closing agreement. If
borrower fails to satisfy the terms of the
post-closing agreement. The borrower must
obtain law and ordinance coverage in
accordance with the terms of the loan
documents.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 35 (Due-on-Sale)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
All Mortgage Loans With respect to all of the Mortgage Loans, in
addition to the exceptions set forth in
representation itself, the Mortgage Loan
documents provide for transfers for reasons
of family and estate planning.
-----------------------------------------------------------------------------------------------
Loan Nos. 42, 60 and 109 (Columbus Park The loan documents permit the equity owners
Apartments, Constitution Place and Hampton Inn of the borrower to incur mezzanine debt
-- Plano) subject to satisfaction of various conditions
specified in such documents, generally
including the satisfaction of LTV and DSCR
tests.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 36 (Non-Recourse Exceptions)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
All Mortgage Loans With respect to the non-recourse carveout
guaranty, certain of the guarantors have
agreed to be liable with respect to "material
misrepresentation" as opposed to "willful
misrepresentation."
-----------------------------------------------------------------------------------------------
Loan No. 29 (Rosslyn Heights) Recourse to the borrower and the borrower
principal for any losses expressly excludes
consequential damages.
-----------------------------------------------------------------------------------------------
Exceptions to Representation 44 (Terrorism Insurance)
-----------------------------------------------------------------------------------------------
Mortgage Loan Exception
-----------------------------------------------------------------------------------------------
Loan No. 29 (Rosslyn Heights) The borrower is required to maintain
terrorism insurance coverage only to the
extent that the premium for such coverage
does not exceed two times the then current
aggregate amount of all insurance premiums
(and not only the portion of the insurance
premiums attributable to terrorism insurance
coverage).
-----------------------------------------------------------------------------------------------
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None.
EXHIBIT 3
PURCHASE PRICE
Purchase Price $262,022,002
Accrued Interest $812,411
------------
Total $262,834,412
EXHIBIT 4
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Prudential Mortgage Capital Funding, LLC
Purchaser: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of December 1, 2006 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
▇▇▇▇ of Sale to be duly executed and delivered on this 1st day of December,
2006.
SELLER: PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: ______________________________________
Name:
Title:
PURCHASER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: ______________________________________
Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARCap Servicing, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
Corporate Trust Office
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Center ▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇ (the "Seller"),
being duly empowered and authorized to do so, does hereby make, constitute and
appoint Capmark Finance Inc. (the "General Master Servicer"), ARCap Servicing,
Inc., having an address of ▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇ (the "Special Servicer") and ▇▇▇▇▇ Fargo Bank, N.A. (the
"Trustee") as the true and lawful attorneys-in-fact for the undersigned, in its
name, place and stead, and for its use and benefit:
1. To empower the Trustee, the General Master servicer and, in
the event of the failure or incapacity of the Trustee and the General Master
servicer, the Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor, the
General Master Servicer, the Special Servicer, the Trustee and LaSalle Bank
National Association, as Paying Agent and Certificate Registrar with respect to
the Trust and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a
limited power of attorney. The enumeration of specific items, rights, acts or
powers herein is not intended to, nor does it give rise to, and it is not
intended to be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this 1st day of December 2006.
Witnessed by: PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
_________________________________ By:______________________________
Print Name: Name:
Title:
STATE OF____________________________)
COUNTY OF___________________________)
On __________________________, before me, a Notary Public in and for said
county, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person acted and executed the instrument.
Witness my hand and official seal.
_______________________________________________
Commission Expires:
