EXHIBIT 99.4
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of December 1, 2005
(this "Agreement"), is entered into between IXIS Real Estate Capital Inc. (the
"Seller") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase one
(1) commercial mortgage loan (the "Mortgage Loan") identified on the schedule
(the "Mortgage Loan Schedule") annexed hereto as Schedule II. The Purchaser
intends to deposit the Mortgage Loan, along with certain other mortgage loans
(the "Other Mortgage Loans"), into a trust fund (the "Trust Fund"), the
beneficial ownership of which will be evidenced by multiple classes of mortgage
pass-through certificates (the "Certificates"). One or more "real estate
mortgage investment conduit" ("REMIC") elections will be made with respect to
most of the Trust Fund. The Trust Fund will be created and the Certificates will
be issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2005 (the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
KeyCorp Real Estate Capital Markets, Inc. as master servicer (in such capacity,
the "Master Servicer"), ▇.▇. ▇▇▇▇▇▇ Company, Inc. as special servicer (in such
capacity, the "Special Servicer"), LaSalle Bank National Association as trustee
(the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. Capitalized terms used
but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
December 1, 2005 (the "Underwriting Agreement"), with ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), IXIS
Securities North America Inc. ("IXIS Securities"), KeyBanc Capital Markets, a
Division of McDonald Investments Inc. ("McDonald Investments"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ Sachs";
▇▇▇▇▇▇▇ ▇▇▇▇▇, Countrywide Securities, IXIS Securities, McDonald Investments,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, collectively, in such capacity, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates"). The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of December 1,
2005 (the "Certificate Purchase Agreement"), with ▇▇▇▇▇▇▇ ▇▇▇▇▇, for itself and
as representative of Countrywide Securities (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the Mortgage
Loan. The Mortgage Loan is expected to have an aggregate principal balance of
$100,000,000 (the "IXIS Mortgage Loan Balance") (subject to a variance of plus
or minus 5.0%) as of the close of business on the Cut-off Date, after giving
effect to any payments due on or before such date, whether or not such payments
are received. The IXIS Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $3,073,749,461 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loan shall take place on
December 7, 2005 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loan shall be equal to (i) 99.22796% of the
IXIS Mortgage Loan Balance as of the Cut-off Date, plus (ii) $82,490, which
amount represents the amount of interest accrued on the IXIS Mortgage Loan
Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loan.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loan as of such date, on a servicing released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance proceeds. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loan due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loan due on or before
the Cut-off Date and principal prepayments thereon), shall belong to, and be
promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on or before the
Closing Date, the documents and instruments specified below with respect to the
Mortgage Loan that are Specially Designated Mortgage Loan Documents and (ii) on
or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to the Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, the "Mortgage File"). The Mortgage File so delivered will be held
by the Trustee in escrow for the benefit of the Seller at all times prior to the
Closing Date. The Mortgage File with respect to the Mortgage Loan shall contain
the following documents:
(i) the original executed Mortgage Note for the Mortgage Loan,
including any power of attorney related to the execution thereof (or a lost
note affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of LaSalle
Bank National Association, as trustee for the registered holders of ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CKI1, or in blank;
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(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of LaSalle Bank National
Association, as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Trust 2005-CKI1, Commercial Mortgage Pass-Through Certificates,
Series 2005-CKI1, or in blank;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan (to the extent not already assigned pursuant to clause (iv)
above) in favor of LaSalle Bank National Association, as trustee for the
registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2005-CKI1, Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, a UCC Financing Statement assignment, in form suitable for
filing in favor of LaSalle Bank National Association, as trustee for the
registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2005-CKI1, Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, as assignee, or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
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(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit, in each case relating to
the Mortgage Loan; and
(xii) if the Mortgage Loan is secured by a hospitality property, a
signed copy of any franchise agreement and/or franchisor comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement with respect to the Mortgage Loan, including
bearing the out-of-pocket costs and expenses of the Trustee in connection with
the performance by the Trustee of its recording, filing and delivery obligations
pursuant to Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loan, (b) are reasonably
necessary for the ongoing administration and/or servicing of the Mortgage Loan
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loan,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for the Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure the Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and the Seller has
taken all necessary corporate action
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to authorize the execution, delivery and performance of this Agreement by
it, and has the power and authority to execute, deliver and perform this
Agreement and all transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loan by the Seller, the
transfer of the Mortgage Loan to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform
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its duties and obligations under this Agreement or materially impair the
ability of the Purchaser to realize on the Mortgage Loan.
(viii) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Seller, threatened against the Seller in any
court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loan to the Purchaser as a sale of the Mortgage Loan to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loan to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loan. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loan to the
Purchaser. The Seller is not selling the Mortgage Loan to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) the Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
If the Seller receives written notice of a Document Defect or a Breach
relating to the Mortgage Loan pursuant to Section 2.03(a) of the Pooling and
Servicing Agreement, then the Seller shall, not later than 90 days from receipt
of such notice (or, in the case of a Document Defect or Breach relating to the
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions (a "Qualified Mortgage"), not later than 90 days from any party to
the Pooling and Servicing Agreement discovering such Document Defect or Breach,
provided the Seller receives such notice in a timely manner), if such Document
Defect or Breach materially and adversely affects the value of the Mortgage Loan
or the interests of the Certificateholders therein, cure such Document Defect or
Breach, as the case may be, in all material respects, which shall include
payment of losses and any Additional Trust Fund Expenses associated therewith
or, if such Document Defect or Breach (other than omissions due solely to a
document not having been returned by the related recording office) cannot be
cured within such 90-day period, (i) repurchase the Mortgage Loan (which, for
the purposes of this clause (i), shall include an REO Loan) at the applicable
Purchase Price (as defined in the Pooling and Servicing Agreement) not later
than the end of such 90-day period or (ii) substitute a Qualified Substitute
Mortgage Loan for the Mortgage Loan (which, for purposes of this clause (ii),
shall include an REO Loan) not later than the end of such 90-day period (and in
no event later than the second anniversary of the Closing Date) and pay the
Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount in connection therewith; provided, however, that, unless the
Document Defect or Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, if such Document Defect or Breach is capable of being cured but not
within such 90-day period and the Seller has commenced and is diligently
proceeding with the cure of such Document Defect or Breach within such 90-day
period, the Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase or substitute the Mortgage Loan (which, for
purposes of such repurchase or substitution, shall include an REO Loan); and
provided, further, that with respect to such additional 90-day period, the
Seller shall have delivered an officer's certificate to the Trustee setting
forth the reason(s) such Document Defect or Breach is not capable of being cured
within the initial 90-day
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period and what actions the Seller is pursuing in connection with the cure
thereof and stating that the Seller anticipates that such Document Defect or
Breach will be cured within the additional 90-day period; and provided, further,
that no Document Defect (other than with respect to the Specially Designated
Mortgage Loan Documents) shall be considered to materially and adversely affect
the interests of the Certificateholders or the value of the Mortgage Loan unless
the document with respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the Mortgage Loan, defending any claim asserted by any borrower or third
party with respect to the Mortgage Loan, establishing the validity or priority
of any lien or any collateral securing the Mortgage Loan or for any immediate
servicing obligations.
Notwithstanding any of the foregoing provisions of this Section 3(c),
if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the interests
of the Certificateholders therein) with respect to one or more Mortgaged
Properties with respect to the Mortgage Loan, the Seller shall not be obligated
to repurchase or substitute the Mortgage Loan if (i) the affected Mortgaged
Property(ies) may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection with such release, (ii) the remaining Mortgaged Property(ies) satisfy
the requirements, if any, set forth in the Mortgage Loan documents and the
Seller provides an opinion of counsel to the effect that such release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code
or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the Master Servicer or the Special
Servicer from the related Mortgagor and not a repurchase or substitution of the
Mortgage Loan. Following the Seller's remittance of funds in payment of such
costs and expenses, the Seller shall be deemed to have cured the breach of
representation 30 in all respects. To the extent any fees or expenses that are
the subject of a cure by the Seller are subsequently obtained from the related
Mortgagor, the cure payment made by the Seller shall be returned to the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller, acting in
its sole discretion, may effect a repurchase or substitution (in accordance with
the provisions of this Section 3(c) setting forth the manner in which the
Mortgage Loan may be repurchased or substituted) of the Mortgage Loan, if
representation 30 set forth on Schedule I has been breached as to the Mortgage
Loan, in lieu of paying the costs and expenses that were the subject of the
breach of representation 30 set forth on Schedule I.
(c) In connection with any permitted repurchase or substitution of the
Mortgage Loan contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the Collection Account, and, if applicable, the
delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage
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Loan(s) to the Custodian and the Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller the legal and beneficial ownership of the repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to the Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of the
repurchased or deleted Mortgage Loan.
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute mortgage
loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for the Mortgage Loan shall be permitted under this Agreement if,
after such substitution, the aggregate of the Stated Principal Balances of all
Qualified Substitute Mortgage Loans which have been substituted for the Mortgage
Loan exceeds 10% of the aggregate Cut-off Date Balance of the Mortgage Loan and
the Other Mortgage Loans. Periodic Payments due with respect to any Qualified
Substitute Mortgage Loan on or prior to the related date of substitution shall
not be part of the Trust Fund or REMIC I.
(d) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative
8
decree or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound, which
default might have consequences that would, in the Purchaser's reasonable and
good faith judgment, materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loan by the Seller to the Purchaser as a
sale of the Mortgage Loan to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loan (the
"Closing") shall be held at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
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(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firms of Ernst
& Young LLP and PriceWaterhouseCoopers LLP, in form satisfactory to the
Purchaser and relating to certain information regarding the Mortgage Loan and
Certificates as set forth in the Prospectus and Prospectus Supplement,
respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of December 1, 2005, among the
Seller, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc., Countrywide Commercial Real Estate
Finance, Inc., KeyBank National Association, the Purchaser, the Underwriters and
the Initial Purchasers. Both parties agree to use their best reasonable efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loan on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of December 7, 2005,
between the Seller and KeyCorp Real Estate Capital Markets, Inc., duly executed
by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting
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as such officer or representative, and the signatures of such persons appearing
on such documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loan or omitted or omit to state therein a material fact necessary
in order to make the statements therein relating to the Mortgage Loan, in light
of the circumstances under which they were made, not misleading, and (ii) such
officer has carefully examined the Specified Portions of the Private Placement
Memorandum, dated as of December 1, 2005 (the "Memorandum") (pursuant to which
certain classes of the Private Certificates are being privately offered) and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loan or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loan, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage
Loan), Annex A-2 to the Prospectus Supplement, entitled "Certain Statistical
Information Regarding the Mortgage Loans" (insofar as the information contained
in Annex A-2 relates to the Mortgage Loan), Annex B to the Prospectus Supplement
entitled "Certain Characteristics Regarding Multifamily Properties" (insofar as
the information contained in Annex B relates to the Mortgage Loan), Annex C to
the Prospectus Supplement, entitled "Structural and Collateral Term Sheet"
(insofar as the information contained in Annex C relates to the Mortgage Loan),
the diskette which accompanies the Prospectus Supplement (insofar as such
diskette is consistent with Annex ▇-▇, ▇▇▇▇▇ ▇-▇ and/or Annex B), and the
following sections of the Prospectus Supplement (only to the extent that any
such information relates to the Seller or the Mortgage Loan and exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers",
"Summary of Prospectus Supplement--The Mortgage Loans And The Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool". The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of New York not earlier than thirty (30) days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller relating to corporate
and enforceability matters (which opinion may be from in-house counsel, outside
counsel or a combination thereof), reasonably satisfactory to the Purchaser, its
counsel and the Rating Agencies, dated the Closing Date and addressed to the
Purchaser, the Trustee, the Underwriters, the Initial Purchasers and each of the
Rating Agencies, together with such other written opinions, including as to
insolvency matters, as may be required by the Rating Agencies; and
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(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loan by the Seller to the
Purchaser as provided in Section 2 of this Agreement be, and be construed as, a
sale of the Mortgage Loan by the Seller to the Purchaser and not as a pledge of
the Mortgage Loan by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loan is held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loan by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the UCC of the
applicable jurisdiction; (ii) the conveyance provided for in Section 2 of this
Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loan, and all amounts payable to the holder of the Mortgage Loan in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 of this Agreement
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loan, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications
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shall be deemed to have been duly given when transmitted by facsimile or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loan by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT AND
THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO EACH
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation
13
resulting from any merger, conversion or consolidation to which the Seller is a
party, or any person succeeding to all or substantially all of the business of
the Seller, shall be the successor to the Seller hereunder. The Purchaser has
the right to assign its interest under this Agreement, in whole or in part, as
may be required to effect the purposes of the Pooling and Servicing Agreement,
and the assignee shall, to the extent of such assignment, succeed to the rights
and obligations hereunder of the Purchaser. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser, the Underwriters (as intended third party beneficiaries
hereof), the Initial Purchasers (also as intended third party beneficiaries
hereof) and their permitted successors and assigns. This Agreement is
enforceable by the Underwriters, the Initial Purchasers and the other third
party beneficiaries hereto in all respects to the same extent as if they had
been signatories hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate with Ernst
& Young LLP and PriceWaterhouseCoopers LLP in making available all information
and taking all steps reasonably necessary to permit such accountants to deliver
the letters required by the Underwriting Agreement and the Certificate Purchase
Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. [Reserved.]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
IXIS REAL ESTATE CAPITAL INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
IXIS Real Estate Capital Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.:
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and Al Sakes
PURCHASER
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS,
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or Director, CMBS
Securitization
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
IXIS MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan. For purposes of
this Schedule I, all references to "Mortgage Loans" shall be construed to refer
to the single mortgage loan being sold by the Seller to the Purchaser under the
Agreement and defined as the "Mortgage Loan" under the Agreement.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in December 2005, without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in December
2005, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however,
to the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment binding upon the title insurer); (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy (or,
if not yet issued, referred to in a pro forma title policy or "marked-up"
commitment binding upon the title insurer); (d) other matters to which like
properties are commonly subject; (e) the rights of tenants (as tenants only)
under leases (including subleases) pertaining to the related Mortgaged Property;
(f) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the
lien of the Mortgage for another Mortgage Loan contained in the same Crossed
Group; and (g) if the related Mortgaged Property consists of one or more units
in a condominium, the related condominium declaration. The Permitted
Encumbrances do not, individually or in the aggregate, materially interfere with
the security intended to be provided by the related Mortgage, the current
principal use of the related Mortgaged Property, the Value of the Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and constitutes
a legal, valid, binding and, subject to the limitations and exceptions set forth
in representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
I-2
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Mortgagor has not been released from
its obligations under such Mortgage, in whole or in material part.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately
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following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) inures to the benefit of the Trustee as sole insured without
the consent of or notice to the insurer. Such Title Policy contains no exclusion
for whether, or it affirmatively insures (unless the related Mortgaged Property
is located in a jurisdiction where such affirmative insurance is not available)
that, (a) the related Mortgaged Property has access to a public road, and (b)
the area shown on the survey, if any, reviewed or prepared in connection with
the origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, judicial or non-judicial foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located). None of the Mortgage Loan documents contains any provision
that expressly excuses the related Mortgagor from obtaining and maintaining
insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are or will become payable to such trustee by the Seller,
the Purchaser or any transferee thereof except in connection with a trustee's
sale after default by the related Mortgagor or in connection with any full or
partial release of the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental
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Report has been delivered to the Purchaser, and (d) either: (i) no such
Environmental Report, if any, reveals that as of the date of the report there is
a material violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a deductible or the
deductible amount is held in escrow and all premiums have been paid in full.
Each Mortgagor represents and warrants in the related Mortgage Loan documents
that except as set forth in certain environmental reports and to its knowledge
it has not used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances,
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regulations, orders, directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. The related Mortgagor (or affiliate thereof)
has agreed to indemnify, defend and hold the Seller and its successors and
assigns harmless from and against any and all losses, liabilities, damages,
injuries, penalties, fines, out-of-pocket expenses and claims of any kind
whatsoever (including attorneys' fees and costs) paid, incurred or suffered by
or asserted against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying applicable
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i) and (ii)) such limitations or unenforceability will not render such
loan documents invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on
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a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V), and flood insurance was available, a flood insurance policy is in
effect with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of: (1) the minimum amount required, under the
terms of coverage, to compensate for any damage or loss on a replacement basis,
(2) the outstanding principal balance of such Mortgage Loan, and (3) the maximum
amount of insurance available under the applicable federal flood insurance
program. Each Mortgaged Property located in California or in seismic zones 3 and
4 is covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. Each Mortgaged Property located within
Florida or within 25 miles of the coast of North Carolina, South Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the insurable
replacement cost of the improvements located on such Mortgaged Property (less
physical depreciation). All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without at least ten (10)
days' prior written notice to the mortgagee; and no such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Additionally, for any Mortgage Loan having a Cut-off Date Balance equal
to or greater than $20,000,000, the insurer for all of the required coverages
set forth herein has a claims paying ability or financial strength rating from
S&P or ▇▇▇▇▇'▇ of not less than A-minus (or the equivalent), or from A.M. Best
Company of not less than "A-minus: V" (or the equivalent) and, if rated by
Fitch, of not less than "A-" from Fitch (or the equivalent). With respect to
each Mortgage Loan, the related Mortgage Loan documents require that the related
Mortgagor or a tenant of such Mortgagor maintain insurance as described above or
permit the related mortgagee to require insurance as described above. Except
under circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage Loan
documents for each Mortgage Loan provide that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage Loan documents may entitle the related Mortgagor to
any portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Mortgagor holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in representation
18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the interest
of a Mortgagor as a lessee under a ground lease of all or a material portion of
a Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or
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encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, taken together, any related casualty
insurance proceeds (other than de minimis amounts for minor casualties)
with respect to the leasehold interest will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or
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(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and may
be compounded monthly and shall be payable only after the outstanding principal
of such Mortgage Loan is paid in full, and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the
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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 or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
I-12
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months. 33. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
I-13
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter into a lockbox arrangement
on the ARD Loan whereby all revenue from the related Mortgaged Property shall be
deposited directly into a designated account controlled by the applicable
servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted for filing and/or recording
to a title company pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee. Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing or
recording of UCC Financing Statements are required in order to effect such
perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
I-14
41. Commencement of Amortization. Except as disclosed in the
Prospectus Supplement, each Mortgage Loan begins to amortize prior to its Stated
Maturity Date or, in the case of an ARD Loan, prior to its Anticipated Repayment
Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor or an entity controlled by a principal of such Mortgagor, for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation awards. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser. 45. Fee Simple
Interest. Unless such Mortgage Loan is secured in whole or in material part by a
Ground Lease and is therefore the subject of representation 18, the interest of
the related Mortgagor in the Mortgaged Property securing each Mortgage Loan is a
fee simple interest in real property and the improvements thereon, except for
any portion of such Mortgaged Property (identified on Annex D) that consists of
a leasehold estate that is not a material ground lease, which ground lease is
not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged
I-15
Property and annual financial statements of the related Mortgagor, and with such
other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than fifteen (15) days from the applicable Due Date
or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession related to
such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
[None.]
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
[None.]
ANNEX D (TO SCHEDULE I)
GROUND LEASES NOT COVERED BY REPRESENTATION 18
(REPRESENTATION 45)
[None.]
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[ATTACHED]
MLMT 2005 - CKI1 IXIS MORTGAGE LOAN SCHEDULE
[ ] Loan Level
[ ] Property Level
PROPERTY
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER TYPE ADDRESS CITY COUNTY
------ ------------------------------------- ----------------------------- -------- ------------------------ ---------- ------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. Other ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
CUTOFF BALANCE
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER STATE ZIP CODE (12/1/2005) ORIGINAL BALANCE
------ ------------------------------------- ----------------------------- -------- -------- -------------- ----------------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. Guilford 27260 100,000,000.00 100,000,000.00
IO MONTHLY MONTHLY ANNUAL P&I
DEBT IO ANNUAL P&I DEBT DEBT
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER SERVICE DEBT SERVICE SERVICE SERVICE
------ ------------------------------------- ----------------------------- ---------- ------------ -------- ----------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 421,608.80 5,059,305.56
INTEREST PRIMARY MASTER TRUSTEE & BROKER
RATE SERVICING SERVICING PAYING STRIP
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER (%) FEE RATE FEE RATE AGENT FEE RATE
------ ------------------------------------- ----------------------------- -------- --------- --------- ---------- ------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 4.9900 0.00000 0.02000 0.00060
NET MORTGAGE
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER ADMIN. FEE INTEREST RATE ACCRUAL TYPE
------ ------------------------------------- ----------------------------- ---------- ------------- ------------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 0.04060 4.94940 Actual/360
REMAINING MATURITY/ARD
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER TERM TERM DATE
------ ------------------------------------- ----------------------------- ---- --------- ------------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 60 59 11/1/2010
AMORT REMAINING
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER TERM AMORT TERM TITLE TYPE ARD (Y/N)
------ ------------------------------------- ----------------------------- ----- ---------- ----------------- ---------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 0 0 Fee and Leasehold No
ARD STEP UP ENVIRONMENTAL ENVIRONMENTAL
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER (%) REPORT TYPE INSURANCE (Y/N)
------ ------------------------------------- ----------------------------- ----------- ------------- ---------------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 10/6/2005 No
CROSS- CROSS- DEFEASANCE
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER DEFAULTED COLLATERALIZED ALLOWED
------ ------------------------------------- ----------------------------- --------- -------------- ----------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. No
LETTER OF LOCKBOX IN- HOLDBACK
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER CREDIT PLACE AMT
------ ------------------------------------- ----------------------------- --------- ----------- --------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. No No
UPFRONT ENG. UPFRONT CAPEX UPFRONT ENVIR.
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER RESERVE RESERVES RESERVE
------ ------------------------------------- ----------------------------- ------------ ------------- --------------
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 143,750.00
UPFRONT
UPFRONTET TI/LC UPFRONT RE INSURANCE
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER RESERVE TAX RESERVE RESERVE
------ ------------------------------------- ----------------------------- --------------- ----------- ---------
5 International Home Furnishings Center IXIS Real Estate Capital Inc.
UPFRONT UPFRONT MONTHLY MONTHLY
OTHER OTHER CAPEX ENVIR.
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER RESERVE DESCRIPTION RESERVE RESERVE
------ ------------------------------------- ----------------------------- ------- ----------- ------- -------
5 International Home Furnishings Center IXIS Real Estate Capital Inc.
MONTHLY MONTHLY RE MONTHLY MONTHLY OTHER
TI/LC TAX INSURANCE OTHER MONTH
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER RESERVE RESERVE RESERVE RESERVE DESCRIPTION
------ ------------------------------------- ----------------------------- ------- ---------- --------- ------- -----------
5 International Home Furnishings Center IXIS Real Estate Capital Inc.
TOTAL UNIT OF GRACE LOAN
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER SF/UNITS MEASURE PERIOD GROUP
------ ------------------------------------- ----------------------------- --------- -------- ------ -----
5 International Home Furnishings Center IXIS Real Estate Capital Inc. 2,706,510 SF 5 1