EXHIBIT 10.4
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MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of April 6, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE..................................................3
2. CONVEYANCE OF MORTGAGE LOANS...........................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER................12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER................................................................15
6. CLOSING...............................................................20
7. CLOSING DOCUMENTS.....................................................21
8. COSTS.................................................................23
9. NOTICES...............................................................23
10. SEVERABILITY OF PROVISIONS............................................24
11. FURTHER ASSURANCES....................................................24
12. SURVIVAL..............................................................24
13. GOVERNING LAW.........................................................24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT..........................25
15. MISCELLANEOUS.........................................................25
16. ENTIRE AGREEMENT......................................................25
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..................17
Agreement..........................2
Certificate Purchase Agreement.....2
Certificates.......................2
Closing Date.......................3
Collateral Information............11
Crossed Mortgage Loans............17
Defective Mortgage Loan...........17
Final Judicial Determination......19
Indemnification Agreement.........13
Initial Purchasers.................2
Master Servicer....................2
Material Breach...................16
Material Document Defect..........16
Memorandum.........................2
MERS...............................5
Mortgage File......................4
Mortgage Loan Schedule.............3
Mortgage Loans.....................2
Officer's Certificate..............7
Other Mortgage Loans...............2
Pooling and Servicing Agreement....2
Private Certificates...............2
Prospectus Supplement..............2
Public Certificates................2
Purchaser..........................2
Repurchased Loan..................17
Seller.............................2
Special Servicer...................2
Trust..............................2
Trustee............................2
Underwriters.......................2
Underwriting Agreement.............2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of April 6, 2006,
between Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Seller") and Bear Xxxxxxx
Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein.
Purchaser will convey the Mortgage Loans to a trust (the "Trust") created
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be dated as of April 1, 2006 between Purchaser, as depositor,
Xxxxx Fargo Bank, National Association, as master servicer (the "Master
Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar. In exchange for the Mortgage Loans and certain other mortgage
loans to be purchased by Purchaser (collectively the "Other Mortgage Loans"),
the Trust will issue to the Depositor pass-through certificates to be known
as Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP22 (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-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class
A-M and Class A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc.
(the "Underwriters"), pursuant to an Underwriting Agreement, between
Purchaser and the Underwriters, dated April 6, 2006 (the "Underwriting
Agreement"), and the Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class R-I, Class R-II and Class R-III Certificates (the "Private
Certificates") will be sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated
and Bear, Xxxxxxx & Co. Inc. (the "Initial Purchasers") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchasers,
dated April 6, 2006 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated March 31, 2006, as supplemented by a Prospectus Supplement dated April
6, 2006 (together, the "Prospectus Supplement") and the Initial Purchasers
will offer the Private Certificates for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum dated April 6, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended
to reflect the actual Mortgage Loans accepted by Purchaser pursuant to the
terms hereof. The Cut-Off Date with respect to the Mortgage Loans is April
1, 2006. The Mortgage Loans will have an aggregate principal balance as of
the close of business on the Cut-Off Date, after giving effect to any
payments due on or before such date, whether or not received, of
$510,894,202. The sale of the Mortgage Loans shall take place on April 20,
2006 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The purchase price to be paid by Purchaser for the
Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to Seller by wire
transfer in immediately available funds on the Closing Date.
1.2 On the Closing Date, 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 14), and the Trustee shall succeed to such right, title
and interest in and to the Mortgage Loans and Purchaser's rights under this
Agreement (to the extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except
as specifically provided herein all the right, title and interest of Seller,
with the understanding that a Servicing Rights Purchase and Sale Agreement,
dated April 1, 2006, will be executed by Seller and the Master Servicer, in
and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to
time on or prior to the Closing Date, shall conform to the requirements of
this Agreement and the Pooling and Servicing Agreement. In connection with
such transfer and assignment, Seller shall deliver to or on behalf of the
Trustee, on behalf of Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause 2.2.1 hereof) for each Mortgage Loan
and on or prior to the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached hereto as
Exhibit 5 in favor of the Trustee and the Special Servicer to empower the
Trustee and, in the event of the failure or incapacity of the Trustee, the
Special Servicer, to submit for recording, at the expense of 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). Seller agrees to reasonably cooperate with the Trustee 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
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that is 180 days following the delivery of notice of such absence to Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents, at Seller's expense, after the periods set
forth above, provided, however, the Trustee shall not submit such assignments
for recording if Seller produces evidence that it has sent any such assignment
for recording and certifies that Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, Seller shall deliver to or on behalf of the Trustee each of
the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions as are permitted by this Section 2) with respect to each
Mortgage Loan (each, a "Mortgage File"). (Seller acknowledges that the term
"without recourse" does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by or on behalf of the Trustee in escrow on behalf of
Seller at all times prior to the Closing Date. The Mortgage Files shall be
released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP22, without recourse, representation
or warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to 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 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;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 45th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in the case of
a delay caused by the public recording office,
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an Officer's Certificate of Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP22," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage
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Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP22," which assignment may be effected in the related Assignment of
Mortgage, provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, Seller shall
take all actions as are necessary to cause the Trustee to be shown as the owner
of the related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS and
shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9 (A) UCC financing statements (together with all assignments thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
Seller shall take all actions as are necessary to cause the Trustee to be shown
as the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, 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, which shall be held
by the 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
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that Seller has agreed (a) that the proceeds of such letter of credit belong to
the Trust, (b) to notify, on or before the Closing Date, the bank issuing the
letter of credit that the letter of credit and the proceeds thereof belong to
the Trust, and to use reasonable efforts to obtain within 30 days (but in any
event to obtain within 90 days) following the Closing Date, an acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent to the
Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the failure of
Seller to assign all rights to the letter of credit hereunder including the
right and power to draw on the letter of credit). In the case of clause (B)
above, any letter of credit held by the Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the Primary Servicer
(or Master Servicer) sells its rights to service the applicable Mortgage Loan,
the 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 Primary Servicer (or Master Servicer). The Primary Servicer (or Master
Servicer) has agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 Third-party management agreements for all hotels and for such other
Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15 Any Environmental Insurance Policy;
2.2.16 Any affidavit and indemnification agreement; and
2.2.17 With respect to the Alderwood Mall Pari Passu Loan, a copy of the
MSCI 2006-TOP21 Pooling and Servicing Agreement.
With respect to the Alderwood Mall Pari Passu Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of copies
of the documents specified above (other than the Mortgage Notes and all
intervening endorsements) evidencing the Alderwood Mall Pari Passu Loan,
including a copy of the related Pari Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12 above
shall be delivered to the Primary Servicer, the Master Servicer or the
Trustee (as the case may be) within 45 days of the Closing Date. In
addition, a copy of any ground lease shall be delivered to the Primary
Servicer within 30 days of the Closing Date. Any failure to deliver any
ground lease shall constitute a document defect.
"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.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary
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expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming 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 Seller to Purchaser and from Purchaser to the
Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections 2.2.2,
2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon, solely because of
a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 45 day period, but
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), to the Trustee within such 45 day period, Seller
shall then deliver within 90 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 unreasonably withheld so long as
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).
2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled
to all scheduled payments of principal due thereon after the Cut-Off Date,
all other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing
on the Cut-Off Date. All scheduled payments of principal and interest due on
or before the Cut-Off Date and collected after the Cut-Off Date shall belong
to Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of Seller, in the appropriate public
office for real property records, each assignment referred to in clauses
2.2.4 and 2.2.6(ii) above. Within 90 days following the Closing Date, Seller
shall deliver and Purchaser, the Trustee or the agents of either may submit
or cause to be submitted for filing, at the expense of Seller, in the
appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause 2.2.1. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, Seller shall prepare a substitute therefor or
cure such defect, and Seller shall, at its own expense (except in the case of
a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
2.7 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not required to
be delivered to the Trustee shall be shipped by
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Seller to or at the direction of the Master Servicer, on behalf of Purchaser, on
or prior to the 75th day after the Closing Date, in accordance with Section 3.1
of the Primary Servicing Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer (or in
the alternative, the Primary Servicer) shall include, to the extent required
to be (and actually) delivered to Seller pursuant to the applicable Mortgage
Loan documents, copies of the following items: the Mortgage Note, any
Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates, as applicable, the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the
Appraisal, the environmental report, the engineering report, the asset
summary, financial information on the Borrower/sponsor and any guarantors,
any letters of credit, any intercreditor agreement and any Environmental
Insurance Policies. 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 subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in Purchaser and its
assigns, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of Seller
shall immediately vest in Purchaser and its assigns, and shall be delivered
promptly by Seller to or on behalf of either the Trustee or the Master
Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. Seller's and Purchaser's records shall reflect the
transfer of each Mortgage Loan from Seller to Purchaser and its assigns as a
sale.
2.10 It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to Purchaser by Seller as provided in
this Section 2 be, and be construed as, an absolute sale of the Mortgage
Loans and related property. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans and related
property by Seller to Purchaser to secure a debt or other obligation of
Seller. However, in the event that, notwithstanding the intent of the
parties, the Mortgage Loans or any related property are held to be the
property of Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date,
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all substitute or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property and other rights
arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.11 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall
be deemed to be possession by the secured party or possession by a purchaser
for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-313 thereof) as in
force in the relevant jurisdiction. Notwithstanding the foregoing, Seller
makes no representation or warranty as to the perfection of any such security
interest.
2.12 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be
deemed to be notifications to, or acknowledgments, receipts or confirmations
from, securities intermediaries, bailees or agents of, or Persons holding
for, Purchaser or its designee, as applicable, for the purpose of perfecting
such security interest under applicable law.
2.13 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, 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, Purchaser
shall have all of the rights and remedies of a secured party and creditor
under the Uniform Commercial Code as in force in the relevant jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject
to Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan
as to which any Mortgage Note (endorsed as described in clause 2.2.1)
required to be delivered to or on behalf of 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
Purchaser's acceptance of the related Mortgage Loan on the Closing Date shall
in no way constitute a waiver of such omission or defect or of Purchaser's or
its successors' and assigns' rights in respect thereof pursuant to Section 5.
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3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its
due diligence review of the Mortgage Loans. The fact that Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of Purchaser or the Trustee to cause Seller
to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, the Trustee, the
Special Servicer and each Rating Agency to examine and audit all books,
records and files pertaining to the Mortgage Loans, Seller's underwriting
procedures and Seller's ability to perform or observe all of the terms,
covenants and conditions of this Agreement. Such examinations and audits
shall take place at one or more offices of Seller during normal business
hours and shall not be conducted in a manner that is disruptive to Seller's
normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, Seller will make available to such
representatives of any of Purchaser, each Underwriter, each Initial
Purchaser, 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 Seller shall cooperate
fully with any such examination and audit in all material respects. On or
prior to the Closing Date, Seller shall provide Purchaser with all material
information regarding Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements
as provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller
in any material respect. Within 45 days after the Closing Date, Seller shall
provide 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.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice
of the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and
the Mortgage Loans that has been delivered into Purchaser's possession and
that is not otherwise publicly available; provided, however, that such
information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or Purchaser is required by law or court order to
disclose such information. If Purchaser is required
11
to disclose in the Memorandum or the Prospectus Supplement confidential
information regarding Seller as described in the preceding sentence, Purchaser
shall provide to Seller a copy of the proposed form of such disclosure prior to
making such disclosure and Seller shall promptly, and in any event within two
Business Days, notify Purchaser of any inaccuracies therein, in which case
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
Purchaser is required by law or court order to disclose confidential information
regarding Seller as described in the second preceding sentence, Purchaser shall
notify Seller and cooperate in Seller's efforts to obtain a protective order or
other reasonable assurance that confidential treatment will be accorded such
information and, if in the absence of a protective order or such assurance,
Purchaser is compelled as a matter of law to disclose such information,
Purchaser shall, prior to making such disclosure, advise and consult with Seller
and its counsel as to such disclosure and the nature and wording of such
disclosure and Purchaser shall use reasonable efforts to obtain confidential
treatment therefor. Notwithstanding the foregoing, if reasonably advised by
counsel that Purchaser is required by a regulatory agency or court order to make
such disclosure immediately, then Purchaser shall be permitted to make such
disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes
for the benefit of Purchaser and its assigns with respect to each Mortgage
Loan 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
Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. Seller has the requisite
power and authority and legal right to own the Mortgage Loans and to transfer
and convey the Mortgage Loans to Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the
12
consummation by Seller of any transaction contemplated hereby, other than (A)
such qualifications as may be required under state securities or blue sky laws,
(B) the filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Seller's sale of the
Mortgage Loans to Purchaser, (C) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained and (D)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on the
performance by Seller under this Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or its ability to perform its obligations and duties hereunder
or result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5 There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated April 6, 2006, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Notwithstanding
anything contained herein to the contrary, this subparagraph 4.1.7 shall run
exclusively to the benefit of Purchaser and no other party.
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4.1.8 The Seller has complied with the disclosure requirements of
Regulation AB that arise from its role as "seller" and "sponsor" in connection
with the issuance of the Public Certificates.
4.1.9 For so long as the Trust is subject to the reporting requirements of
the Exchange Act, the Seller shall provide the Purchaser (or with respect to any
Serviced Companion Mortgage Loan that is deposited into an Other Securitization,
the depositor in such Other Securitization) and the Paying Agent with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next to the Seller's name on Schedule XV and Schedule XVI of the Pooling
and Servicing Agreement within the time periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
To induce Purchaser to enter into this Agreement, Seller hereby covenants
that the foregoing representations and warranties and those set forth on
Exhibit 2 hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant
to this Section 4.1 shall survive the sale of the Mortgage Loans and shall
continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation
14
or by-laws or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which Purchaser is a
party or that may be applicable to Purchaser or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants
that the foregoing representations and warranties will be true and correct in
all material respects on and as of the Closing Date with the same effect as
if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the
Trustee on behalf of the holders of the Certificates, whether directly or by
way of 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).
5.2 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, not properly executed or is defective on its face, or if there is a
breach of any of the representations and warranties required to be made by
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case the
party discovering such breach or defect determines that either (i) the defect
or breach materially and adversely affects the interests of the holders of
the Certificates in the related Mortgage Loan or (ii) both
15
(A) the 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 (any such defect described in the preceding clause
(i) or (ii), a "Material Document Defect" and any such breach described in the
preceding clause (i) or (ii), a "Material Breach"), the party determining that
such Material Document Defect or Material Breach exists shall promptly notify,
in writing, the other parties; provided that any breach of the representation
and warranty contained in paragraph (41) 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 determining (or becoming aware of another
party's determination) that any such Material Document Defect or Material Breach
exists (which determination shall, absent evidence to the contrary, be presumed
to be no earlier than three Business Days prior to delivery of the notice to
Seller referred to below), the Master Servicer shall, and the Special Servicer
may, request that Seller, not later than 90 days from Seller's receipt of the
notice of such Material Document Defect or Material Breach, cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects; provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all material
respects within such 90 day period, and such Material Document Defect or
Material Breach would not cause the Mortgage Loan to be other than a "qualified
mortgage"(as defined in the Code) but Seller is diligently attempting to effect
such correction or cure, as certified by Seller in an Officer's Certificate
delivered to 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 then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to Seller by 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 Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by Seller shall, in
and of itself, constitute delivery of notice of any Material Document Defect or
knowledge or awareness by Seller, the Master Servicer or the Special Servicer of
any Material Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller otherwise
fails to correct or cure within the above cure periods, Seller shall, on or
before the termination of such cure periods, either (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan (or interest therein) from
Purchaser or its assignee at the Purchase Price as defined in the Pooling and
Servicing Agreement, or (ii) if within the three-month period commencing on
the Closing Date (or within the two-year period commencing on the Closing
Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), at its option replace, without recourse, any Mortgage
Loan or REO Mortgage Loan to which such defect relates with a Qualifying
Substitute Mortgage Loan. If such Material Document Defect or Material
Breach would cause the Mortgage Loan to be
16
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, repurchase must occur within 85
days from the date Seller was notified of the defect. Seller agrees that any
substitution shall be completed in accordance with the terms and conditions of
the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as
the case may be, as to such Crossed Mortgage Loans (without regard to this
paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material
Breach, as the case may be, as to each such Crossed Mortgage Loan for
purposes of the above provisions, and Seller shall be obligated to repurchase
or replace each such Crossed Mortgage Loan in accordance with the provisions
above, unless, in the case of such breach or document defect, (A) Seller
provides a Nondisqualification Opinion to the Trustee at the expense of
Seller if, in the reasonable business judgment of the Trustee, it would be
usual and customary in accordance with industry practice to obtain a
Nondisqualification Opinion and (B) both of the following conditions would be
satisfied if Seller were to repurchase or replace only those Mortgage Loans
as to which a Material Breach or Material Document Defect had occurred
without regard to this paragraph (the "Affected Loan(s)"): (i) the debt
service coverage ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x below the
debt service coverage ratio for all such other Mortgage Loans (including the
Affected Loans(s)) set forth in Appendix II to the Final Prospectus
Supplement and (B) the debt service coverage ratio for all such Crossed
Mortgage Loans (including the Affected Loan(s)) for the four preceding
calendar quarters preceding the repurchase or replacement, and (ii) the
loan-to-value ratio for all such Crossed Mortgage Loans (excluding the
Affected Loan(s)) is not greater than the greater of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for all such
Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix
II to the Final Prospectus Supplement plus 10% and (B) the loan-to-value
ratio for all such Crossed Mortgage Loans (including the Affected Loans(s)),
at the time of repurchase or replacement. The determination of the Master
Servicer as to whether the conditions set forth above have been satisfied
shall be conclusive and binding in the absence of manifest error. The Master
Servicer will be entitled to cause to be delivered, or direct Seller to (in
which case Seller shall) cause to be delivered to the Master Servicer, an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of Seller if the scope and cost of the
Appraisal is approved by Seller (such approval not to be unreasonably
withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller
is required to repurchase or substitute for such Defective Mortgage Loan
(each, a "Repurchased Loan") in the manner prescribed above while the Trustee
(as assignee of Purchaser) continues to hold any Crossed Mortgage Loan,
Seller and Purchaser hereby agree to forebear from enforcing any remedies
against the other's Primary Collateral but may exercise remedies against the
Primary Collateral securing their respective Mortgage Loans, including with
respect to the Trustee, the Primary Collateral securing the Mortgage Loans
still held by the Trustee, so long as such
17
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies until the
loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Pooling and Servicing Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing the Crossed
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B hereto are intended third-party beneficiaries
of the provisions set forth in this paragraph and the preceding paragraph. The
provisions of this paragraph and the preceding paragraph may not be modified
with respect to any Mortgage Loan without the related Mortgagor's consent.
5.6 Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be
regular on its face; (b) the absence from the Mortgage File of the original
signed Mortgage that appears to be regular on its face, unless there is
included in the Mortgage File a certified copy of the Mortgage by the local
authority with which the Mortgage was recorded; or (c) the absence from the
Mortgage File of the item specified in paragraph 2.2.8. If any of the
foregoing Material Document Defects is discovered by the Custodian (or 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
Seller for the cure of the Material Document Defect or repurchase or
replacement of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a
correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the affected Mortgage Loan from Purchaser or its assignee or
(iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan, each in accordance with this Agreement, then provided that (i) the
period of time provided for Seller to correct, repurchase or cure has expired
and (ii) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, 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 Sections 9.5, 9.12,
9.15 and 9.36, as applicable, of the Pooling and Servicing Agreement, while
pursuing the repurchase claim. Seller acknowledges and agrees that any
modification of the Mortgage Loan pursuant to a work-out shall not constitute
a defense to any repurchase claim nor shall such modification and work-out
change the Purchase Price due from Seller for any repurchase claim. In the
event of any such modification and work-out, Seller shall be obligated to
repurchase the Mortgage Loan as modified and the Purchase Price shall include
any Work-Out Fee paid to the Special Servicer up to the date of repurchase
plus the present value (calculated at a discount rate equal to the applicable
Mortgage Rate) of the Work-Out Fee that would have been payable to the
Special
18
Servicer in respect of such Mortgage Loan if the Mortgage Loan performed in
accordance with its terms to its Maturity Date, provided that no amount shall be
paid by Seller in respect of any Work-Out Fee if a Liquidation Fee already
comprises a portion of the Purchase Price.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans
or REO Properties, as applicable, in accordance with Section 9.36 of the
Pooling and Servicing Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim
against Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer shall notify Seller of the discovery of
the Material Document Defect or Material Breach and Seller shall have 90 days
to correct or cure such Material Document Defect or Material Breach or
purchase the REO Property (or interest therein) at the Purchase Price. After
a final liquidation of the Mortgage Loan or REO Mortgage Loan, if a court of
competent jurisdiction issues a final order after the expiration of any
applicable appeal period that Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan (or interest therein) (a "Final
Judicial Determination") or Seller otherwise accepts liability, then, but in
no event later than the Termination of the Trust pursuant to Section 9.30 of
the Pooling and Servicing Agreement, Seller will be obligated to pay to the
Trust the difference between any Liquidation Proceeds received upon such
liquidation in accordance with the Pooling and Servicing Agreement (including
those arising from any sale to Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or REO
Property as described in this Section 5, the Special Servicer shall not
receive a Liquidation Fee from Seller (but may collect such Liquidation Fee
from the related Liquidation Proceeds as otherwise provided herein);
provided, however, that in the event Seller is obligated to repurchase the
Mortgage Loan or REO Mortgaged Property (or interest therein) after a final
liquidation of such Mortgage Loan or REO Property pursuant to the immediately
preceding paragraph, an amount equal to any Liquidation Fee (calculated on
the basis of Liquidation Proceeds) payable to the Special Servicer shall be
included in the definition of "Purchase Price" in respect of such Mortgage
Loan or REO Mortgaged Property. Except as expressly set forth above, no
Liquidation Fee shall be payable in connection with a repurchase of a
Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of
the representations and warranties set forth in paragraph 39 in Exhibit 2
hereto, and as a result the payments, by a Mortgagor, of reasonable costs and
expenses associated with the defeasance or assumption of a Mortgage Loan are
insufficient causing the Trust to incur an Additional Trust Expense in an
amount equal to such reasonable costs and expenses not paid by such
Mortgagor, Seller hereby
19
covenants and agrees to reimburse the Trust within 90 days of the receipt of
notice of such breach in an amount sufficient to avoid such Additional Trust
Expense. The parties hereto acknowledge that such reimbursement shall be
Seller's sole obligation with respect to the breach discussed in the previous
sentence.
5.13 The Pooling and Servicing Agreement shall provide that the Trustee (or
the Master Servicer or the Special Servicer on its behalf) shall give written
notice promptly (but in any event within three Business Days) to Seller of
its determination that any Material Document Defect or Material Breach exists
(which determination shall, absent evidence to the contrary, be presumed to
be no earlier than three Business Days prior to delivery of the notice) and
prompt written notice to Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to Seller all
Mortgage Loan documents with respect to such Mortgage Loan, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee shall be endorsed and assigned to Seller in the same manner such
that 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.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00
a.m., New York time, on the Closing Date. The closing shall be subject to
each of the following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have
20
the ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of
Seller and dated the Closing Date, and upon which Purchaser and its
successors and assigns may rely, to the effect that: (i) the representations
and warranties of Seller in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same force and
effect as if made on the Closing Date, provided that any representations and
warranties made as of a specified date shall be true and correct as of such
specified date; and (ii) Seller has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or prior
to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization
and by-laws.
7.4 A certificate of existence for Seller from the Secretary of State of
New York dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated
the Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at
the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures.
21
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's
reasonable qualifications):
7.6.1 Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
22
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.
7.7 Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
7.8 A "10b-5" opinion of counsel addressed to the Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the
Underwriters, as to the disclosure provided by Seller to Purchaser in
connection with the Certificates.
7.9 An opinion of counsel addressed to Purchaser and the Underwriters, in
form reasonably acceptable to Purchaser and the Underwriters, that such
disclosure complies as to form with the applicable requirements of Regulation
AB with respect to Seller's role as Sponsor (as defined in Regulation AB) in
connection with the Certificates.
7.10 A letter from Deloitte & Touche, certified public accountants, dated
the date hereof, to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of
an accounting, financial or statistical nature set forth in the Memorandum
and the Prospectus Supplement agrees with the records of Seller.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 An officer's certificate of Purchaser, dated as of the Closing Date,
with the resolutions of Purchaser authorizing the transactions described
herein attached thereto, together with certified copies of the charter,
by-laws and certificate of good standing of Purchaser dated not earlier than
30 days prior to the Closing Date.
7.13 Such other certificates of Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in this
Agreement as Seller or its counsel may reasonably request.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed
upon by Seller and Purchaser in a separate Letter of Understanding entered
into in connection with this Agreement and the issuance of the Certificates.
9. NOTICES. All communications provided for or permitted hereunder shall
be in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier
23
delivery service and received by the addressee, or (d) transmitted by telex or
facsimile transmission (or any other type of electronic transmission agreed upon
by the parties) and confirmed by a writing delivered by any of the means
described in (a), (b) or (c), if (i) to Purchaser, addressed to Bear Xxxxxxx
Commercial Mortgage Securities Inc., addressed to Bear Xxxxxxx Commercial
Mortgage Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage
Department (with a copy to the attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing
Director, Legal Department) (or such other address as may hereafter be furnished
in writing by Purchaser), or if (ii) to Seller, addressed to Seller at Xxxxxx
Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Deutsch (or to such other address as Seller may designate in
writing) with a copy to the attention of Xxxxxxxx Xxxxx, Esq. at 0000 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to
be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
that prohibits or renders void or unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made
by the other party or on its behalf, and that the representations, warranties
and agreements made by such other party herein or in any such certificate or
other instrument shall survive the delivery of and payment for the Mortgage
Loans and shall continue in full force and effect, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes and
notwithstanding subsequent termination of this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
THE PARTIES HERETO INTEND
24
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall
inure to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons
and for the benefit of no other person except that the rights and obligations
of Purchaser pursuant to Sections 2, 4.1 (other than clause 4.1.7), 5, 9, 10,
11, 12 and 13 hereof may be assigned to 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 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.
15. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
The rights and obligations of Seller under this Agreement shall not be
assigned by Seller without the prior written consent of Purchaser, except
that any person into which Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
Seller is a party, or any person succeeding to the entire business of Seller
shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any
nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
25
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first
above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL
INC.
By: /s/ Xxxxxxx X. Sfarro
-----------------------------------------
Name:
Title:
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
BSCMSI 2006 TOP22 Mortgage Loan Schedule
MSMC
Original
Mortgage Term to
Loan Loan Cut-Off Date Maturity Remaining Orig.
Seller Number Property Name Balance Note Date or ARD Term Amort.
1 MSMC 06-24688 Chesterbrook/Glenhardie $14,902,000 03/08/2006 120 119 IO
Portfolio - 000
Xxxxxxxxxxxx Xxxx (I)
2 MSMC 06-24691 Chesterbrook/Glenhardie $13,046,000 03/08/2006 120 119 IO
Portfolio - 000
Xxxxxxxxxxxx Xxxx (I)
3 MSMC 06-24690 Chesterbrook/Glenhardie $12,101,000 03/08/2006 120 119 IO
Portfolio - 000
Xxxxxxxxxxxx Xxxx (I)
4 MSMC 06-24689 Chesterbrook/Glenhardie $9,427,000 03/08/2006 120 119 IO
Portfolio - 000
Xxxxxxxxxxxx Xxxx (I)
5 MSMC 06-24692 Chesterbrook/Glenhardie $8,740,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxx Xxxxx (I)
6 MSMC 06-24694 Chesterbrook/Glenhardie $8,560,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxx Xxxxx (I)
7 MSMC 06-24685 Chesterbrook/Glenhardie $6,257,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (I)
8 MSMC 06-24686 Chesterbrook/Glenhardie $6,124,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (I)
9 MSMC 06-24687 Chesterbrook/Glenhardie $6,093,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (I)
10 MSMC 06-24693 Chesterbrook/Glenhardie $5,977,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxx Xxxxx (I)
11 MSMC 06-24696 Chesterbrook/Glenhardie $5,193,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxxxx Xxxx (I)
12 MSMC 06-24695 Chesterbrook/Glenhardie $5,183,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxxxx Xxxx (I)
13 MSMC 06-24698 Chesterbrook/Glenhardie $5,104,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxxxx Xxxx (I)
14 MSMC 06-24697 Chesterbrook/Glenhardie $4,809,000 03/08/2006 120 119 IO
Portfolio - 0000
Xxxxxxxx Xxxx (I)
15 MSMC 06-24682 Chesterbrook/Glenhardie $3,221,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (I)
16 MSMC 06-24683 Chesterbrook/Glenhardie $2,955,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (I)
17 MSMC 06-24684 Chesterbrook/Glenhardie $2,308,000 03/08/2006 120 119 IO
Portfolio - 000 Xxx
Xxxx (X)
00 XXXX XX0 Xxxxxxxxx Mall $103,268,302 06/14/2005 60 51 360
44 MSMC 05-23801 Olympic Plaza $39,962,516 02/28/2006 120 119 360
51 MSMC 06-24321 Embassy Suites $21,779,925 02/16/2006 120 119 360
Sacramento
53 XXXX 00-00000 Xxxxxx Xxxxx Xxxxxx $19,714,117 11/30/2005 180 176 180
59 MSMC 05-24009 Morgantown $14,240,000 02/08/2006 120 119 360
Multifamily Portfolio
- Bon Vista and
Villas (A)
60 MSMC 05-24008 Morgantown $2,160,000 02/08/2006 120 119 360
Multifamily Portfolio
- Barrington North (A)
62 MSMC 05-23923 Lake Buena Vista $15,978,110 02/13/2006 120 119 300
Courtyard by Marriott
78 MSMC 05-20938 Franklin Shopping $12,500,000 12/29/2005 120 117 360
Plaza
84 MSMC 06-24161 Xxxxx Xxxxxxx Building $11,000,000 02/08/2006 120 119 IO
89 MSMC 00-00000 Xxxxxxxxx Xxxxxx $10,500,000 02/01/2006 120 118 300
Shopping Center
105 MSMC 05-23324 List Industries $7,590,166 02/09/2006 120 119 300
Building
117 MSMC 05-22879 Hilton Garden Inn - $6,360,843 11/17/2005 120 116 300
St. Augustine Beach
125 MSMC 05-22116 IBM Business Center $5,600,000 12/21/2005 120 117 360
128 MSMC 05-20494 000 Xxxx 00xx Xxxxxx $5,300,000 05/27/2005 180 000 XX
Xxxx
000 XXXX 00-00000 Xxxxxxxx Xxxx $5,300,000 12/20/2005 120 117 IO
Shopping Center
131 MSMC 05-21736 Hampton Inn St. $5,078,866 11/17/2005 120 116 360
Xxxxxxx
142 MSMC 05-23390 Tassajara Village $4,634,689 12/30/2005 120 117 360
146 MSMC 05-23162 Westbrooke Village $4,500,000 12/29/2005 120 117 360
Apartments
154 MSMC 05-21759 Hampton Inn Wausau $4,082,420 11/17/2005 120 116 360
156 MSMC 05-23159 LeMans Village $4,000,000 12/29/2005 120 117 360
Apartments
157 MSMC 05-23023 Mill Pond Village MHC $4,000,000 11/29/2005 120 116 360
160 XXXX 00-00000 Xxx Xxxx Xxxxxxx MHC $3,990,389 01/30/2006 120 118 360
161 MSMC 05-23192 Hartco-Ventura $3,990,294 01/10/2006 120 118 360
162 MSMC 00-00000 Xxxxxxx Xxxxxx $3,981,449 12/08/2005 120 117 300
163 MSMC 00-00000 Xxxxxxxxx Xxxxx Coop $3,977,754 10/27/2005 180 175 360
164 MSMC 05-21639 000 Xxxx Xxx Xxxxxx $3,950,000 09/06/2005 120 114 IO
Coop
167 MSMC 05-21072 00 Xxxxx Xxxxxx $3,880,510 10/31/2005 120 115 360
170 MSMC 05-21881 Xxxxx Farm Phase II $3,738,375 12/06/2005 120 117 360
171 MSMC 05-20782 LaSalle Bank - Joliet $3,583,906 11/30/2005 120 116 360
180 MSMC 05-21810 DBSI - Wistar Center $3,380,000 11/30/2005 120 116 360
185 MSMC 05-22484 74 & 98 Fox Island $3,250,000 11/04/2005 60 00 XX
Xxxx
000 XXXX 05-21047 00 Xxxxxx Xxxxxx $3,000,000 10/14/2005 120 115 IO
Condop
198 MSMC 05-22003 000 Xxxxxxxx Xxxxxx $3,000,000 01/05/2006 120 118 360
199 MSMC 05-22384 00 Xxxx 00xx Xxxxxx $3,000,000 11/18/2005 120 116 IO
Coop
202 MSMC 05-22986 Heights Corner II $2,990,397 12/13/2005 120 117 360
203 MSMC 00-00000 Xxxxxxxxxx Xxxxx $2,986,087 12/08/2005 120 117 300
207 MSMC 00-00000 Xxxxx Xxxxx II $2,887,537 01/14/2005 120 106 360
210 MSMC 05-23160 Maple Canyon $2,800,000 12/29/2005 120 117 360
Apartments
212 MSMC 05-22657 00-00 00xx Xxxxxx Xxxx $2,750,000 12/08/2005 120 117 IO
217 MSMC 05-23521 U-Stor-It River Oaks $2,600,000 12/27/2005 60 57 300
220 MSMC 04-18562 Hillcrest Apartments $2,591,359 12/06/2005 120 117 360
227 MSMC 05-21561 Cortlandt Medical $2,473,330 12/02/2005 180 177 180
Center
228 MSMC 05-22979 The Hunton Group $2,436,751 11/23/2005 120 116 120
Building
231 MSMC 05-19359 Walgreens - Shreveport $2,376,218 06/29/2005 120 111 360
232 MSMC 05-23001 Xxxxxxxxx Industrial $2,367,567 12/21/2005 120 117 360
Building
236 MSMC 05-23303 U-Stor-It Northwest $2,200,000 12/27/2005 60 57 300
237 MSMC 05-22997 Xxxxxxx Shopping $2,191,476 11/10/2005 120 116 360
Center
252 XXXX 00-00000 Xxxxxxxxx Xxxx $1,692,608 11/10/2005 120 116 360
265 MSMC 05-19735 CVS - Chanhassen $1,278,243 04/19/2005 288 277 288
Monthly
Debt
Rate Service Seasoning DEF DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1
1 5.670% $71,390 1 91 25
2 5.670% $62,498 1 91 25
3 5.670% $57,971 1 91 25
4 5.670% $45,161 1 91 25
5 5.670% $41,870 1 91 25
6 5.670% $41,008 1 91 25
7 5.670% $29,975 1 91 25
8 5.670% $29,338 1 91 25
9 5.670% $29,189 1 91 25
10 5.670% $28,634 1 91 25
11 5.670% $24,878 1 91 25
12 5.670% $24,830 1 91 25
13 5.670% $24,451 1 91 25
14 5.670% $23,038 1 91 25
15 5.670% $15,431 1 91 25
16 5.670% $14,156 1 91 25
17 5.670% $11,057 1 91 25
18 4.714% $536,890 9 20
44 5.520% $227,618 1 91
51 5.590% $125,012 1 91
53 5.500% $163,417 4 91
59 5.440% $65,451 1 91
60 5.440% $9,928 1 91
62 5.640% $99,596 1
78 5.230% $55,236 3 89
84 5.670% $52,697 1 91
89 5.380% $47,729 2 90
105 5.930% $48,642 1 91
117 5.500% $39,302 4 88
125 5.620% $26,591 3 80
128 5.290% $23,689 10 142
129 5.470% $24,495 3 89
131 5.630% $29,375 4 88
142 5.510% $26,431 3 89
146 5.390% $20,493 3 89
154 5.460% $23,177 4 88
156 5.390% $18,216 3 89
157 5.120% $17,304 4 88
160 5.360% $22,361 2 90
161 5.300% $22,212 2 90
162 5.580% $24,755 3 57
163 5.320% $22,262 5 147
164 4.730% $15,786 6 56
167 5.860% $23,033 5 87
170 5.830% $22,075 3 89
171 5.250% $19,879 4 88
180 5.750% $16,421 4 88
185 5.540% $15,213 4 28
197 4.990% $12,648 5 87
198 5.330% $13,510 2 90
199 4.880% $12,369 4 88
202 5.660% $17,336 3 89
203 5.580% $18,566 3 57
207 5.730% $17,062 14 78
210 5.390% $12,751 3 89
212 5.430% $12,617 3 89
217 6.230% $13,686 3 20
220 5.460% $14,697 3 89
227 5.660% $20,640 3 149
228 5.350% $26,946 4 88
231 5.250% $13,253 9 83
232 5.780% $13,905 3 89
236 6.230% $11,580 3 20
237 5.960% $13,134 4 88
252 5.390% $9,535 4 88
265 6.000% $8,528 11 249
Master
Excess
Serv.
Master Primary Fee
YM Admin Service Service Rate
YM 5% 4% 3% 2% 1% Open Formula Cost Rate Fee Rate Fee Rate (bps)
1 4 A 3.150 2.000 1.000 0.000
2 4 A 3.150 2.000 1.000 0.000
3 4 A 3.150 2.000 1.000 0.000
4 4 A 3.150 2.000 1.000 0.000
5 4 A 3.150 2.000 1.000 0.000
6 4 A 3.150 2.000 1.000 0.000
7 4 A 3.150 2.000 1.000 0.000
8 4 A 3.150 2.000 1.000 0.000
9 4 A 3.150 2.000 1.000 0.000
10 4 A 3.150 2.000 1.000 0.000
11 4 A 3.150 2.000 1.000 0.000
12 4 A 3.150 2.000 1.000 0.000
13 4 A 3.150 2.000 1.000 0.000
14 4 A 3.150 2.000 1.000 0.000
15 4 A 3.150 2.000 1.000 0.000
16 4 A 3.150 2.000 1.000 0.000
17 4 A 3.150 2.000 1.000 0.000
18 7 4.150 0.000 0.000 0.000
44 4 3.150 2.000 1.000 0.000
51 4 8.150 2.000 5.000 1.000
53 61 3.150 2.000 1.000 0.000
59 4 8.150 2.000 5.000 1.000
60 4 8.150 2.000 5.000 1.000
62 57 4 F 3.150 1.000 2.000 0.000
78 4 3.150 2.000 1.000 0.000
84 4 3.150 2.000 1.000 0.000
89 4 3.150 2.000 1.000 0.000
105 4 3.150 2.000 1.000 0.000
117 4 3.150 2.000 1.000 0.000
125 13 H 13.150 2.000 10.000 1.000
128 4 I 3.150 2.000 1.000 0.000
129 4 3.150 2.000 1.000 0.000
131 4 J 3.150 2.000 1.000 0.000
142 4 3.150 2.000 1.000 0.000
146 4 3.150 2.000 1.000 0.000
154 4 J 3.150 2.000 1.000 0.000
156 4 3.150 2.000 1.000 0.000
157 4 8.150 2.000 5.000 1.000
160 4 3.150 2.000 1.000 0.000
161 4 3.150 2.000 1.000 0.000
162 4 J 3.150 2.000 1.000 0.000
163 4 K 3.150 2.000 1.000 0.000
164 4 L 3.150 2.000 1.000 0.000
167 4 3.150 2.000 1.000 0.000
170 4 3.150 2.000 1.000 0.000
171 4 3.150 2.000 1.000 0.000
180 4 3.150 2.000 1.000 0.000
185 4 3.150 2.000 1.000 0.000
197 4 J 3.150 2.000 1.000 0.000
198 4 3.150 2.000 1.000 0.000
199 4 J 3.150 2.000 1.000 0.000
202 4 3.150 2.000 1.000 0.000
203 4 J 3.150 2.000 1.000 0.000
207 4 3.150 2.000 1.000 0.000
210 4 3.150 2.000 1.000 0.000
212 4 K 3.150 2.000 1.000 0.000
217 13 3.150 2.000 1.000 0.000
220 4 N 3.150 2.000 1.000 0.000
227 4 J 3.150 2.000 1.000 0.000
228 4 3.150 2.000 1.000 0.000
231 4 3.150 2.000 1.000 0.000
232 4 3.150 2.000 1.000 0.000
236 13 3.150 2.000 1.000 0.000
237 4 3.150 2.000 1.000 0.000
252 4 3.150 2.000 1.000 0.000
265 4 3.150 2.000 1.000 0.000
Primary
Excess
Servicing Other
Fee Rate Trustee Master
(bps) Deal Fees Fee Rate Fee
1 0.000 3.000 0.150 0.000
2 0.000 3.000 0.150 0.000
3 0.000 3.000 0.150 0.000
4 0.000 3.000 0.150 0.000
5 0.000 3.000 0.150 0.000
6 0.000 3.000 0.150 0.000
7 0.000 3.000 0.150 0.000
8 0.000 3.000 0.150 0.000
9 0.000 3.000 0.150 0.000
10 0.000 3.000 0.150 0.000
11 0.000 3.000 0.150 0.000
12 0.000 3.000 0.150 0.000
13 0.000 3.000 0.150 0.000
14 0.000 3.000 0.150 0.000
15 0.000 3.000 0.150 0.000
16 0.000 3.000 0.150 0.000
17 0.000 3.000 0.150 0.000
18 0.000 0.000 0.150 4.000
44 0.000 3.000 0.150 0.000
51 0.000 7.000 0.150 0.000
53 0.000 3.000 0.150 0.000
59 0.000 7.000 0.150 0.000
60 0.000 7.000 0.150 0.000
62 0.000 3.000 0.150 0.000
78 0.000 3.000 0.150 0.000
84 0.000 3.000 0.150 0.000
89 0.000 3.000 0.150 0.000
105 0.000 3.000 0.150 0.000
117 0.000 3.000 0.150 0.000
125 0.000 12.000 0.150 0.000
128 0.000 3.000 0.150 0.000
129 0.000 3.000 0.150 0.000
131 0.000 3.000 0.150 0.000
142 0.000 3.000 0.150 0.000
146 0.000 3.000 0.150 0.000
154 0.000 3.000 0.150 0.000
156 0.000 3.000 0.150 0.000
157 0.000 7.000 0.150 0.000
160 0.000 3.000 0.150 0.000
161 0.000 3.000 0.150 0.000
162 0.000 3.000 0.150 0.000
163 0.000 3.000 0.150 0.000
164 0.000 3.000 0.150 0.000
167 0.000 3.000 0.150 0.000
170 0.000 3.000 0.150 0.000
171 0.000 3.000 0.150 0.000
180 0.000 3.000 0.150 0.000
185 0.000 3.000 0.150 0.000
197 0.000 3.000 0.150 0.000
198 0.000 3.000 0.150 0.000
199 0.000 3.000 0.150 0.000
202 0.000 3.000 0.150 0.000
203 0.000 3.000 0.150 0.000
207 0.000 3.000 0.150 0.000
210 0.000 3.000 0.150 0.000
212 0.000 3.000 0.150 0.000
217 0.000 3.000 0.150 0.000
220 0.000 3.000 0.150 0.000
227 0.000 3.000 0.150 0.000
228 0.000 3.000 0.150 0.000
231 0.000 3.000 0.150 0.000
232 0.000 3.000 0.150 0.000
236 0.000 3.000 0.150 0.000
237 0.000 3.000 0.150 0.000
252 0.000 3.000 0.150 0.000
265 0.000 3.000 0.150 0.000
1-1
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, 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 Purchaser of the Mortgage Loans, Seller had good title to,
and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to
be conveyed) to Purchaser or its designee all of Seller's legal and
beneficial interest in and to the Mortgage Loans free and clear of any and
all pledges, liens, charges, security interests and/or other encumbrances.
The sale of the Mortgage Loans to Purchaser or its designee does not require
Seller to obtain any governmental or regulatory approval or consent that has
not been obtained.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
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 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), 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
2-1
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.
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.
7. Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have
been established) that would materially and adversely affect its value as
security for the related Mortgage Loan, and (ii) with respect to the
Mortgaged Properties securing the Mortgage Loans that were not the subject of
an engineering report within 18 months prior to the Cut-Off Date as set forth
on Schedule A to this Exhibit 2, each Mortgaged Property is in good repair
and condition and all building systems contained therein are in good working
order (or adequate reserves therefor have been established) and each
Mortgaged Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related
Mortgage Loan as of the date hereof. Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, 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
2-2
and building restriction lines of such property, except for encroachments that
are insured against by the lender's title insurance 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 an equivalent form of) lender's title insurance
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 Seller's knowledge, the insurer issuing such Title Policy is
qualified to do business in the jurisdiction in which the related Mortgaged
Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of
any funds escrowed for such purpose that were to have been complied with on
or before the Closing Date have been complied with, or any such funds so
escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except
in connection with a trustee's sale after default by the related Mortgagor or
in connection with any full or partial release of the related Mortgaged
Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental
2-3
site assessment within 18 months prior to the Cut-Off Date, an
environmental site assessment prepared to ASTM standards, or an
update of a previous such report, was performed with respect to each
Mortgaged Property in connection with the origination or the sale 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, or on behalf of,
Purchaser or its designee, and 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. Each Mortgage Loan set forth on
Schedule C to this Exhibit 2 (each, a "Schedule C Loan") is the
subject of a Secured Creditor Impaired Property Policy, issued by
the issuer set forth on Schedule C (the "Policy Issuer") and
effective as of the date thereof (the "Environmental Insurance
Policy"). Except as set forth on Schedule A to this Exhibit 2, with
respect to each Schedule C Loan, (i) the Environmental Insurance
Policy is in full force and effect, (ii)(a) a property condition or
engineering report was prepared with respect to lead based paint
("LBP") and radon gas ("RG") at each Mortgaged Property that is used
as a multifamily dwelling, and with respect to asbestos containing
materials ("ACM") at each related Mortgaged Property and (b) if such
report disclosed the existence of a material and adverse LBP, ACM or
RG environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender a
reserve from loan proceeds, in an amount deemed to be sufficient by
Seller for the remediation of the problem and/or (B) agreed in the
Mortgage Loan documents to establish an operations and maintenance
plan after the closing of the Mortgage Loan, (iii) on the effective
date of the Environmental Insurance Policy, Seller as originator had
no knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than the
existence of LBP, ACM or RG) that was not disclosed to the Policy
Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the
Policy Issuer or (c) an engineering or other report provided to the
Policy Issuer and (iv) the premium of any Environmental Insurance
Policy has been paid through the maturity of the policy's term and
the term of such policy extends at least five years beyond the
maturity of the Mortgage Loan.
2-4
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx.
6901 et seq.), the Federal Water Pollution Control Act as amended
(33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act (42 U.S.C.
xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage 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
2-5
origination by the originator of such Mortgage Loan consistent with its normal
commercial mortgage lending practices, against other risks insured against by
persons operating like properties in the locality of the Mortgaged Property in
an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the Mortgaged Property, and not less
than the amount necessary to avoid the operation of any co-insurance provisions
with respect to the Mortgaged Property, and the policy contains no provisions
for a deduction for depreciation; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property estimated as of the date of origination by the originator of
such Mortgage Loan consistent with its normal commercial lending practices; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards and the Federal Emergency
Management Agency requires flood insurance to be maintained); and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders, 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.
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 unpaid until the date
on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor
in any state or federal bankruptcy or insolvency proceeding. As of the date
of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by
square feet) of the net rentable area of the related Mortgaged Property was,
to Seller's knowledge, a debtor in any state or federal bankruptcy or
insolvency proceeding and (ii) with respect to Mortgage Loans with a
principal balance equal to or less than $3,500,000 no tenant physically
occupying 50% or more (by square feet) of the net rentable area of the
related Mortgaged Property was, to Seller's knowledge, a debtor in any state
or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or
in part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related
2-6
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease since
the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a
part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns 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 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;
(iv) 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 Seller has received no notice that an event of
default has occurred thereunder, and, to 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;
(v) 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.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
2-7
(vii) 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;
(viii)Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration
of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by the related Mortgage having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with
any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
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)).
2-8
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange
under Section 1001 of the Code either (a) was modified as a result of the
default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause
(a)(i) of paragraph 19 (substituting the date of the last such modification
for the date the Mortgage Loan was originated) or clause (a)(ii) of paragraph
19, including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with 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 predetermined or objectively determinable release price and
prepayment consideration in connection therewith. Except as described in the
first sentence hereof and for those Mortgage Loans identified on Schedule A,
no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Borrower to
provide an opinion of tax counsel to the effect that such release or
substitution of collateral (a) would not constitute a "significant
modification" of such Mortgage Loan within the meaning of Treas. Reg.
ss.1.1001-3 and (b) would not cause such Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
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.
2-9
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan,
in any such case to the extent the same materially and adversely affects the
value of the Mortgage Loan and the related Mortgaged Property; provided,
however, that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12,
14, 15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such
improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property, such value as
determined by the appraisal performed at origination or in connection with
the sale of the related Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without
the prior written consent of the holder thereof or the satisfaction of debt
service coverage or similar criteria specified therein. Seller has no
knowledge that any of the Mortgaged Properties is encumbered by any lien
junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there
are no actions, suits or proceedings before any court, administrative agency
or arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged
Property that might adversely affect title to the Mortgaged Property or the
validity or enforceability of the related Mortgage or that might materially
and adversely affect the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller or
any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable mortgage loans,
as of the date of origination of each Mortgage Loan or as of the date of the
sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required
by applicable law for the ownership and operation of the related Mortgaged
Property as it was then operated.
2-10
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal
and state laws applicable to the use and operation of the related Mortgaged
Property and (b) if the operator of the Mortgaged Property participates in
Medicare or Medicaid programs, the facility is in compliance in all material
respects with the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance
of the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the
loan by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose,
a "Single Purpose Entity" shall mean an entity, other than an individual,
whose organizational documents provide substantially to the effect that it
was formed or organized solely for the purpose of owning and operating one or
more of the Mortgaged Properties securing the Mortgage Loans and prohibit it
from engaging in any business unrelated to such Mortgaged Property or
Properties, and whose organizational documents further provide, or which
entity represented in the related Mortgage Loan documents, substantially to
the effect that it does not have any assets other than those related to its
interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person (other than a Mortgagor for
a Mortgage Loan that is cross-collateralized and cross-defaulted with the
related Mortgage Loan), and that it holds itself out as a legal entity,
separate and apart from any other person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural
person (and the Mortgagor if the Mortgagor is not a natural person) is liable
to the holder of the Mortgage Loan for damages arising in the case of fraud
or willful misrepresentation by the Mortgagor, misappropriation of rents,
insurance proceeds or condemnation awards and breaches of the environmental
covenants in the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the
2-11
lender incurred in connection with the defeasance of such Mortgage Loan and the
release of the related Mortgaged Property, and the borrower is required to pay
all reasonable costs and expenses of the lender associated with the approval of
an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is more than two years after the Closing Date, (ii) that
it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as
amended) or any direct non-callable security issued or guaranteed as to
principal or interest by the United States that will provide interest and
principal payments sufficient to satisfy scheduled payments of interest and
principal as required under the related Mortgage Loan, or (iii) defeasance
requires the payment of any consideration other than (a) reimbursement of
incidental costs and expenses and/or (b) a specified dollar amount or an
amount that is based on a formula that uses objective financial information
(as defined in Treasury Regulation Section 1.446-3(c)(4)(ii)).
41. 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.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect
to each other Mortgage Loan, the related all risk insurance policy and
business interruption policy did not as of the date of origination of the
Mortgage Loan, and, to Seller's knowledge, do not, as of the date hereof,
specifically exclude Acts of Terrorism from coverage, or if such coverage is
excluded, it is covered by a separate terrorism insurance policy. With
respect to each of the Mortgage Loans, the related Mortgage Loan documents do
not 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.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as part
of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are
being made solely for the purpose of determining whether the Mortgaged
Property, if acquired by the Trust, would qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, and may not be relied
upon or used for any other purpose. Such representations shall not be
construed as a guarantee to any degree that defaults or losses will not occur.
2-12
Schedule A
Exceptions to Representations and Warranties
2006-Top 22 - Xxxxxx Xxxxxxx Mortgage Capital Inc.
Schedule A: Representation Exceptions
Schedule B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
Schedule C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
BSCMSI 2006-TOP22
Pricing Formulation
Mortgage Loan Sellers PRICING FORMULATION
--------------------------------------------------------------------------------
Bear Xxxxxxx: 403,357,909
Xxxxxx Xxxxxxx: 503,152,643
Xxxxx Fargo: 509,881,880
PCF I: 87,263,009
PCF II: 178,858,344
--------------------------------------------------------------------------------
Deal 1,682,513,786
================================================================================
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of April 6, 2006 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the Cut-Off Date, all
substitute or replacement Mortgage Loans and all distributions with
respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described
in clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale
to be duly executed and delivered on this 20th day of April, 2006.
SELLER: XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PURCHASER: BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
THE MORTGAGE LOAN PURCHASE AGREEMENT
FORM OF LIMITED POWER OF ATTORNEY
TO LASALLE BANK NATIONAL ASSOCIATION
AND ARCAP SERVICING, INC.
WITH RESPECT TO
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP22
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of April 6, 2006 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") and Bear Xxxxxxx Commercial
Mortgage Securities Inc. ("Depositor"), MSMC is selling certain multifamily and
commercial mortgage loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of April 1, 2006 (the "Pooling and Servicing Agreement"), between the
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, ARCap
Servicing, Inc. ("ARCAP") as Special Servicer, LaSalle Bank National Association
("LaSalle") as Trustee and Xxxxx Fargo Bank, National Association, as Paying
Agent, the Trustee and the Special Servicer are granted certain powers,
responsibilities and authority in connection with the completion and the filing
and recording of assignments of mortgage, deeds of trust or similar documents,
Form UCC-2 and UCC-3 assignments of financing statements, reassignments of
assignments of leases, rents and profits and other Mortgage Loan documents
required to be filed or recorded in appropriate public filing and recording
offices;
WHEREAS, MSMC has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMC does hereby make, constitute and appoint LaSalle,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, MSMC's true and lawful agent and
attorney-in-fact with respect to each
5-1
Mortgage Loan in MSMC's name, place and stead: (i) to complete (to the extent
necessary) and to cause to be submitted for filing or recording in the
appropriate public filing or recording offices, all assignments of mortgage,
deeds of trust or similar documents, assignments or reassignments of rents,
leases and profits, in each case in favor of the Trustee, as set forth in the
definition of "Mortgage File" in Section 1.1 of the Pooling and Servicing
Agreement, that have been received by the Trustee or a Custodian on its behalf,
and all Form UCC-2 or UCC-3 assignments of financing statements and all other
comparable instruments or documents with respect to the Mortgage Loans which are
customarily and reasonably necessary or appropriate to assign agreements,
documents and instruments pertaining to the Mortgage Loans, in each case in
favor of the Trustee as set forth in the definition of "Mortgage File" in, and
in accordance with Section 1.1 of, the Pooling and Servicing Agreement, and to
evidence, provide notice of and perfect such assignments and conveyances in
favor of the Trustee in the public records of the appropriate filing and
recording offices; and (ii) to file or record in the appropriate public filing
or recording offices, all other Mortgage Loan documents to be recorded under the
terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents
which have not been submitted for filing or recordation by MSMC on or before the
date hereof or which have been so submitted but are subsequently lost or
returned unrecorded or unfiled as a result of actual or purported defects
therein, in order to evidence, provide notice of and perfect such documents in
the public records of the appropriate filing and recording offices.
Notwithstanding the foregoing, this Limited Power of Attorney shall grant to
LaSalle and ARCAP only such powers, responsibilities and authority as are set
forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
MSMC does also hereby make, constitute and appoint ARCAP, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
MSMC's true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in MSMC's name, place and stead solely to exercise and perform all of the
rights, authority and powers of LaSalle as set forth in the preceding paragraph
in the event of the failure or the incapacity of LaSalle to do so for any
reason. As between ARCAP and any third party, no evidence of the failure or
incapacity of LaSalle shall be required and such third party may rely upon
ARCAP's written statement that it is acting pursuant to the terms of this
Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMC's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMC might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMC agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMC, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMC's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is
acting pursuant to the Pooling and Servicing Agreement. Any purchaser, title
insurance company or other third party may rely upon a written statement by
either the Trustee or the Special Servicer that any particular Mortgage Loan or
related mortgaged real property in question is subject to and included under
this Limited Power of Attorney and the Pooling and Servicing Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMC and MSMC's successors and assigns.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until
the earliest occurrence of any of the following events:
16.1 with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
16.2 with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
16.3 with respect to the Trustee, the appointment of a receiver or
conservator with respect to the business of the Trustee, or the
filing of a voluntary or involuntary petition in bankruptcy by or
against the Trustee;
16.4 with respect to the Special Servicer, the appointment of a receiver
or conservator with respect to the business of the Special Servicer,
or the filing of a voluntary or involuntary petition in bankruptcy
by or against the Special Servicer;
16.5 with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
16.6 with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance
with its terms; and
16.7 with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to
the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of MSMC under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, MSMC has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
April 20, 2006.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By: -----------------------------------
Name:
Title:
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ____ day of April, 2006, before me appeared Xxxxxx X. Friend to me
personally known, who, being by me duly sworn did say that he/she is the Vice
President of Xxxxxx Xxxxxxx Mortgage Capital Inc., and that the seal affixed to
the foregoing instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed in behalf of said corporation by authority
of its board of directors, and said Vice President acknowledged said instrument
to be the free act and deed of said corporation.
Name:
-----------------------------------
Notary Public in and for said
County and State
My Commission Expires:
-----------------------------
