EXHIBIT 99.5
MORTGAGE LOAN PURCHASE AGREEMENT
(MASS MUTUAL LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
December 1, 2006, between Massachusetts Mutual Life Insurance Company (the
"Seller"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of December 1, 2006, between the Purchaser, as
depositor, Capmark Finance Inc. as General Master Servicer, Prudential Asset
Resources, Inc. as Prudential Master Servicer, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association as Paying Agent and Certificate
Registrar and ▇▇▇▇▇ Fargo Bank, N.A. as Trustee. In exchange for the Mortgage
Loans and certain other mortgage loans (the "Other Mortgage Loans") to be
purchased by the Purchaser, the Trust will issue to the Depositor pass-through
certificates to be known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ12 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-NM, Class A-3,
Class A-AB, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E
and Class F Certificates (the "Public Certificates") will be sold by the
Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, LaSalle Financial Services, Inc,
Greenwich Capital Markets, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇
Incorporated and SunTrust Capital Markets, Inc. (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated December 14, 2006 (the "Underwriting Agreement"),
and the Class X-1, Class X-2, Class X-W, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated December 14, 2006 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated December 6, 2006, as supplemented by a Prospectus Supplement dated
December 14, 2006 (together, the "Prospectus Supplement"), and the Initial
Purchaser will offer the Private Certificates (other than the Class EI, Class
R-I, Class R-II and Class R-III Certificates) for sale in transactions exempt
from the registration requirements of the Securities Act of 1933 pursuant to a
Private Placement Memorandum, dated as of December 14, 2006 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, the Mortgage Loans identified on the schedule
(the "Mortgage Loan Schedule") annexed hereto as Exhibit 1, as such schedule may
be amended to reflect the actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Cut-Off Date with respect to each Mortgage
Loan is such Mortgage Loan's Due Date in the month of December 2006. The
Mortgage Loans and the Other Mortgage Loans will have an aggregate principal
balance as of the close of business on the Cut-Off Date, after giving effect to
any payments due on or before such date, whether or not received, of
$2,730,307,529. The sale of the Mortgage Loans shall take place on December 21,
2006 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The purchase price to be paid by the Purchaser for the
Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans, except as set forth in a Servicing
Rights Purchase Agreement, dated December 21, 2006, which will be executed by
the Seller and the General Master Servicer, identified on the Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing Agreement. In
connection with such transfer and assignment, the Seller shall deliver to or on
behalf of the Trustee, on behalf of the Purchaser, on or prior to the Closing
Date, the Mortgage Note (as described in clause (a) below) for each Mortgage
Loan and on or prior to the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached hereto as Exhibit
5 in favor of the Trustee, the applicable Master Servicer and the Special
Servicer to empower the Trustee, the applicable Master Servicer and, in the
event of the failure or incapacity of the Trustee and the applicable Master
Servicer, the Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the Special Servicer in connection with any additional
powers of attorney or revisions thereto that are requested by such parties for
purposes of such recordation. The parties hereto agree that no such power of
attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions as are permitted by this Section) with respect to
each Mortgage Loan (each, a "Mortgage File"). (The Seller acknowledges that the
term "without recourse" does not modify the duties of the Seller under Section 5
hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of ▇▇▇▇▇ Fargo
Bank, N.A., as Trustee for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-IQ12, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if such original
modification, consolidation and extension agreements have been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, true copies of such
modifications, consolidations and extensions certified by the Seller together
with (i) in the case of a delay caused by the public recording office, an
Officer's Certificate of the Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (ii) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such a copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "▇▇▇▇▇ Fargo Bank, N.A., as Trustee for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-IQ12";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or, in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "▇▇▇▇▇ Fargo Bank, N.A., as Trustee for ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-IQ12," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with the Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the applicable Primary Servicing Agreement or (B) the
original of each letter of credit, if any, constituting additional collateral
for such Mortgage Loan (other than letters of credit representing tenant
security deposits which have been collaterally assigned to the lender), which
shall be assigned to and held by the Primary Servicer (or the Master Servicer)
on behalf of the Trustee, with a copy to be held by the Trustee, and applied,
drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, the Pooling and Servicing Agreement and the
applicable Primary Servicing Agreement (it being understood that the Seller has
agreed (a) that the proceeds of such letter of credit belong to the Trust, (b)
to notify, on or before the Closing Date, the bank issuing the letter of credit
that the letter of credit and the proceeds thereof belong to the Trust, and to
use reasonable efforts to obtain within 30 days (but in any event to obtain
within 90 days) following the Closing Date, an acknowledgement thereof by the
bank (with a copy of such acknowledgement to be sent to the Trustee) and (c) to
indemnify the Trust for any liabilities, charges, costs, fees or other expenses
accruing from the failure of the Seller to assign the letter of credit
hereunder). In the case of clause (B) above, any letter of credit held by the
Primary Servicer (or Master Servicer) shall be held in its capacity as agent of
the Trust, and if the applicable Primary Servicer (or Master Servicer) has
agreed to assign the applicable letter of credit to the Trust or at the
direction of the Special Servicer to such party as the Special Servicer may
instruct in the event a successor to the party holding such letter of credit is
appointed pursuant to the related Primary Servicing Agreement or the Pooling and
Servicing Agreement, as applicable, in each case, at the expense of the
predecessor Primary Servicer (or predecessor Master Servicer). The Primary
Servicer (or Master Servicer) has agreed to indemnify the Trust for any loss
caused by the ineffectiveness of such assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties with a Cut-Off Date balance equal
to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender; and
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents.
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any
Managing Director, any Executive Vice President, any Director, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer, any
Assistant Treasurer, any Secretary or Assistant Secretary.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and the assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
true and correct copy thereof, to the Trustee as required by such clause, the
Seller shall then deliver within 180 days after the Closing Date such recorded
document (or within such longer period after the Closing Date as the Trustee may
consent to, which consent shall not be withheld so long as the Seller is, as
certified in writing to the Trustee no less than monthly, in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due on the Mortgage Loan after
the Cut-Off Date, all other payments of principal collected after the Cut-Off
Date (other than scheduled payments of principal due on or before the Cut-Off
Date), and all payments of interest on the Mortgage Loans allocable to the
period commencing on the Cut-Off Date. All scheduled payments of principal and
interest due on or before the Cut-Off Date and collected after the Cut-Off Date
shall belong to the Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above. Within 45 days following the Closing Date, the
Seller shall deliver and the Purchaser, the Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i)(B) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer, the Seller will draw on such letter of
credit as directed by the Master Servicer in such notice to the extent the
Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to the Master Servicer
or the applicable Primary Servicer or Sub-Servicer, on its behalf, on or prior
to the 75th day after the Closing Date.
The Servicing File shall consist of, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney client
privileged communications, internal correspondence or credit analysis. Each of
the foregoing items shall be delivered in electronic form, to the extent such
document is available in such form and such form is reasonably acceptable to the
Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein. The Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property is held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
described as belonging to the Purchaser in the first paragraph of
this Section 2, all substitute or replacement Mortgage Loans and
all distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as requested by Purchaser to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool, and (iii)
otherwise cooperate fully with the Purchaser in its examination of the credit
files, underwriting documentation and Mortgage Files for the Mortgage Loans and
its due diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller upon reasonable
prior advance notice during normal business hours and shall not be conducted in
a manner that is disruptive to the Seller's normal business operations. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation organized and in good standing under the laws of
Massachusetts. The Seller has the requisite power and authority and
legal right to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of,
this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument,
other than pursuant to this Agreement, or (C) after giving effect to the
consents or taking of the actions contemplated in subsection (iii), any
law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation
or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect its
ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser
(assuming the Purchaser has the capacity to acquire such Mortgage
Loans).
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of December
14, 2006, between the Seller, the Purchaser, the Underwriters and the
Initial Purchaser (the "Indemnification Agreement")) contained in the
Disclosure Information (as defined in the Indemnification Agreement),
the Memorandum and the Prospectus Supplement (i) does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) (other
than the Memorandum) complies with the requirements of and contains all
of the applicable information required by Regulation AB (as defined in
the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date
(or as of such other date specifically set forth in the particular
representation and warranty).
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(v) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Purchaser shall assign its
rights under this Section 5 to Trustee on behalf of the holders of the
Certificates.
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure
periods), is not properly executed or is defective on its face, or if there is a
breach of any of the representations and warranties required to be made by the
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case such
defect or breach, either (i) materially and adversely affects the interests of
the holders of the Certificates in the related Mortgage Loan, or (ii) both (A)
materially and adversely affects the value of the Mortgage Loan and (B) the
Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage
Loan (such a document defect described in the preceding clause (i) or (ii), a
"Material Document Defect" and such a breach described in the preceding clause
(i) or (ii) a "Material Breach"), the party discovering such Material Document
Defect or Material Breach shall promptly notify the other party in writing.
Promptly (but in any event within three Business Days) upon becoming aware of
any such Material Document Defect or Material Breach, the Master Servicer shall,
and the Special Servicer may, request that the Seller, not later than 90 days
from the Seller's receipt of the notice of such Material Document Defect or
Material Breach, cure such Material Document Defect or Material Breach, as the
case may be, in all material respects; provided, however, that if such Material
Document Defect or Material Breach, as the case may be, cannot be corrected or
cured in all material respects within such 90-day period, and such Material
Document Defect or Material Breach would not cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code) but the Seller is
diligently attempting to effect such correction or cure, as certified by the
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an additional 90 days unless, solely in the case of
a Material Document Defect, (x) the Mortgage Loan is, at the end of the initial
90-day period, a Specially Serviced Mortgage Loan and a Servicing Transfer Event
has occurred as a result of a monetary default or as described in clause (ii) or
clause (v) of the definition of "Servicing Transfer Event" in the Pooling and
Servicing Agreement and (y) the Material Document Defect was identified in a
certification delivered to the Seller by the Trustee pursuant to Section 2.2 of
the Pooling and Servicing Agreement not less than 90 days prior to the delivery
of the notice of such Material Document Defect. The parties acknowledge that
neither delivery of a certification or schedule of exceptions to the Seller
pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor
possession of such certification or schedule by the Seller shall, in and of
itself, constitute delivery of notice of any Material Document Defect or
knowledge or awareness by the Seller of any Material Document Defect listed
therein. It is understood and agreed that the 90 day limit will not be violated
as a result of recording office or UCC filing office delays, other than with
respect to a Material Document Defect or Material Breach that would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code).
In addition, following the date on which such document is required to be
delivered pursuant to Section 2 (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed to
materially and adversely to affect the interests of holders of the Certificates
in the related Mortgage Loan and be a Material Document Defect: (a) the absence
from the Mortgage File of the original signed Mortgage Note, unless the Mortgage
File contains a signed lost note affidavit and indemnity and a copy of the
Mortgage Note; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a true and correct copy
of the Mortgage together with an Officer's Certificate or certification as
required by Section 2(b); or (c) the absence from the Mortgage File of the item
called for by paragraph (h) of the definition of Mortgage File. If any of the
foregoing Material Document Defects are discovered by any party to the Pooling
and Servicing Agreement, the Trustee (or as set forth in the Pooling and
Servicing Agreement, the Master Servicer) will, among other things, give notice
to the Rating Agencies and the parties to the Pooling and Servicing Agreement
and make demand upon the Seller for the cure of the document defect or
repurchase or replacement of the related Mortgage Loan.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
respects within the above cure periods, the related Seller shall, on or before
the termination of such cure periods, either (i) repurchase the related Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date at its option replace any
Mortgage Loan or REO Mortgage Loan to which such defect relates with a
Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
repurchase or substitution must occur within 90 days from the earlier of the
date the Seller discovered or was notified of the defect or breach. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. If required by the terms of the
related Mortgage Loan documents, the Mortgagors set forth on Schedule B hereto
are intended third-party beneficiaries of the provisions set forth in this
paragraph and the preceding paragraph. If required by the terms of the related
Mortgage Loan documents, the provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 42 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan by the Mortgagor or a breach of the representation
and warranty set forth in paragraph 25 of Exhibit 2 attached hereto because the
underlying loan documents do not provide for the payment by the Mortgagor of the
costs of a tax opinion associated with the full or partial release or
substitution of collateral for a Mortgage Loan, the Seller hereby covenants and
agrees to pay such reasonable costs and expenses, to the extent an amount is due
and not paid by the related Mortgagor. The parties hereto acknowledge that the
payment of such reasonable costs and expenses shall be the Seller's sole
obligation with respect to the breaches discussed in the previous sentence. The
Seller shall have no obligation to pay for any of the foregoing costs if the
applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 38 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the Special Servicer on its
behalf) shall give written notice within three Business Days to the Seller of
its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan
(including, without limitation, all documents delivered by Seller pursuant to
Section 2 of this Agreement), all funds held in escrow with respect to the
Mortgage Loan and each document that constitutes a part of the Mortgage File
that was endorsed or assigned to the Trustee shall be endorsed and assigned to
the Seller in the same manner such that the Seller shall be vested with legal
and beneficial title to such Mortgage Loan, in each case without recourse,
representation, or warranty, including any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policies with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 9:00 a.m., New York time, on the Closing
Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement and the representations
and warranties set forth on Exhibit 2 to this Agreement shall be true and
correct as of the Closing Date (or as of such other date specifically set forth
in the particular representation and warranty) (to the extent of the standard,
if any, set forth in each representation and warranty).
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller's Information (as
defined in the Indemnification Agreement) to be disclosed in the Memorandum and
the Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of good standing for the Seller from the
Secretary of the Commonwealth of Massachusetts dated not earlier than 30 days
prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Massachusetts law and
has full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitute a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of New York, as applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed ▇▇▇▇ of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated December 14, 2006.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event reasonably determined in good faith by the Purchaser as
required to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in
formatting reasonably appropriate for inclusion in such form), insofar as such
disclosure is required under Items 1117 and 1119 of Regulation AB and Item 1.03
to Form 8-K. The Seller shall use commercially reasonable efforts consistent
with the Pooling and Servicing Agreement to deliver proposed disclosure language
relating to any event specifically relating to the Seller described under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee and the
Purchaser within one Business Day and in any event no later than two Business
Days of the Seller becoming aware of such event and shall provide disclosure
relating to any other event reasonably determined by the Purchaser as required
to be disclosed on Form 8-K, Form 10-D or Form 10-K within two Business Days
following the Purchaser's request for such disclosure language. The obligation
of the Seller to provide the above-referenced disclosure materials will
terminate upon notice or other written confirmation from the Purchaser or the
Trustee that the Trustee has filed a Form 15 with respect to the Trust as to
that fiscal year in accordance with Section 13.8 of the Pooling and Servicing
Agreement or the reporting requirements with respect to the Trust under the
Securities Exchange Act of 1934, as amended, have otherwise automatically
suspended. The Seller hereby acknowledges that the information to be provided by
it pursuant to this Section will be used in the preparation of reports meeting
the reporting requirements of the Trust under Section 13(a) and/or Section 15(d)
of the Securities Exchange Act of 1934, as amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a
copy to ▇.▇. ▇▇▇▇▇▇ (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Massachusetts Mutual Life Insurance Company, c/o Babson Capital Management LLC,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Managing Director, Real Estate Financing Group, with a copy to Massachusetts
Mutual Life Insurance Company, c/o Babson Capital Management LLC, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President,
Real Estate Law.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: BABSON CAPITAL MANAGEMENT LLC, its
authorized agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Executive Director
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Loan No. CMSA Loan No. CMSA Property No. Mortgage Loan Seller(1) Property Name(2)
----------------- ------------- ----------------- ----------------------- ------------------------------
117 76 76-001 MassMutual Congress Park Apartments
118 77 77-001 MassMutual Bridgewater Park Apartments
124 83 83-001 MassMutual Pebble Creek Apartments
130 89 89-001 MassMutual Club At Vero-I (*)
131 90 90-001 MassMutual Club At Vero-II (*)
133 92 92-001 MassMutual Fox Crossing Apartments
147 106 106-001 MassMutual Sterling Point Apartments
155 114 114-001 MassMutual Commander Place Apartments
156 115 115-001 MassMutual Grand Point Apartments
166 125 125-001 MassMutual Ospreys Landing Apartments
167 126 126-001 MassMutual ▇▇▇▇▇▇▇▇ Commons
172 131 131-001 MassMutual Ashton Of Richmond Hill
182 140 140-001 MassMutual Chimney Ridge - Phase I (D)
183 141 141-001 MassMutual Chimney Ridge - Phase II (D)
185 143 143-001 MassMutual Oak Pointe Apartments
192 150 150-001 MassMutual Woodchase Club Apartments
194 152 152-001 MassMutual Northpointe Commons Apartments
206 164 164-001 MassMutual Savannah Sound Apartments
207 165 165-001 MassMutual Indian River Apartments
217 172 172-001 MassMutual Ravenwood Apartments
218 173 173-001 MassMutual Arbor Lakes Apartments
247 200 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
250 203 203-001 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ 219-001 MassMutual ▇▇▇▇▇▇▇▇ Place Apartments
273 226 226-001 MassMutual Mission Vista Apts
287 239 239-001 MassMutual Overland Park Estates
Mortgage Loan No. Loan Group Cross-Collateralization(2) Original Balance Cut-Off Date Balance(3) NOI DSCR(4) NCF DSCR(4)
----------------- ---------- -------------------------- ---------------- ----------------------- ----------- -----------
117 2 No $8,600,000 $7,652,502 1.63 1.56
118 2 No $8,825,000 $7,634,016 1.28 1.21
124 2 No $8,215,000 $7,330,981 1.57 1.50
130 2 Yes $6,330,000 $6,160,504 1.33 1.25
131 2 Yes $610,000 $609,429 1.33 1.25
133 2 No $7,200,000 $6,717,757 1.09 1.03
147 2 No $6,800,000 $6,077,918 1.16 1.09
155 2 No $6,450,000 $5,675,883 1.58 1.51
156 2 No $6,240,000 $5,601,839 1.46 1.41
166 2 No $5,915,000 $5,189,393 1.80 1.74
167 2 No $5,250,000 $5,180,346 1.29 1.23
172 2 No $5,650,000 $5,009,103 1.46 1.37
182 2 Yes $3,888,000 $3,465,702 1.36 1.28
183 2 Yes $1,152,000 $1,026,840 1.36 1.28
185 2 No $5,050,000 $4,482,597 1.13 1.05
192 2 No $4,806,000 $4,266,929 1.73 1.65
194 2 No $4,800,000 $4,234,697 1.09 1.02
206 2 No $4,680,000 $3,986,398 1.50 1.42
207 2 No $4,500,000 $3,863,384 1.41 1.32
217 2 No $4,400,000 $3,706,727 1.36 1.27
218 2 No $4,250,000 $3,700,075 1.47 1.40
247 2 No $2,985,000 $2,807,177 1.11 1.08
250 2 No $3,100,000 $2,776,395 1.40 1.32
266 2 No $3,070,000 $2,424,681 1.68 1.56
273 2 No $2,420,000 $2,314,750 1.16 1.09
287 2 No $1,932,000 $1,928,387 1.26 1.15
Mortgage Loan No. Post IO Period NCF DSCR(4) Cut-Off Date LTV(4) Balloon LTV(4) Cut-Off Date LTV Without Tax Credits(4)
----------------- -------------------------- ------------------- -------------- ---------------------------------------
117 NAP 38.7% 34.4% 38.7%
118 NAP 57.6% 45.3% 57.6%
124 NAP 42.9% 33.5% 46.8%
130 NAP 48.0% 39.7% 64.2%
131 NAP 48.0% 39.7% 64.2%
133 NAP 44.4% 39.9% 57.6%
147 NAP 47.9% 36.9% 52.0%
155 NAP 38.8% 30.5% 39.6%
156 NAP 38.5% 29.7% 43.8%
166 NAP 35.3% 28.1% 35.3%
167 NAP 40.1% 30.7% 60.2%
172 NAP 45.3% 19.3% 45.3%
182 NAP 44.8% 35.3% 47.7%
183 NAP 44.8% 35.3% 47.7%
185 NAP 58.7% 52.1% 58.7%
192 NAP 40.3% 29.2% 51.2%
194 NAP 67.4% 53.4% 67.4%
206 NAP 47.4% 37.1% 47.4%
207 NAP 47.3% 42.1% 47.7%
217 NAP 43.2% 12.9% 43.2%
218 NAP 47.9% 20.2% 48.5%
247 NAP 52.9% 44.5% 68.9%
250 NAP 48.4% 34.1% 53.2%
266 NAP 36.1% 0.4% 36.1%
273 NAP 24.8% 20.6% 56.1%
287 NAP 46.2% 33.5% 86.4%
Mortgage Loan No. Balloon LTV Without Tax Credits(4) Street Address City State Zip Code Property Type
----------------- ---------------------------------- ----------------------------- ------------- ----- -------- -------------
117 34.4% ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
118 45.3% ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
124 36.5% ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
130 53.0% ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
131 53.0% ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
133 51.7% ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
147 40.1% ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
155 31.1% ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
156 33.8% ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
166 28.1% ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
167 46.2% ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
172 19.3% ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
182 37.6% ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
183 37.6% ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
185 52.1% ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
192 37.0% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
194 53.4% ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
206 37.1% ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
207 42.4% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
217 12.9% ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
218 20.5% ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
247 58.0% ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
250 37.5% ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
266 0.4% ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
273 46.5% ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
287 62.6% ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Multifamily
Mortgage Loan No. Property Sub-Type Units/SF(5) Year Built Year Renovated Percent Leased(6) Percent Leased as of Date(6)
----------------- ----------------- ----------- ---------- -------------- ----------------- ----------------------------
117 Garden 288 1995 NAP 97.2% 09/22/2006
118 Garden 264 1995 NAP 86.7% 09/21/2006
124 Garden 256 1996 NAP 96.9% 09/21/2006
130 Garden 184 2001 NAP 96.7% 09/21/2006
131 Garden 184 2001 NAP 96.7% 09/21/2006
133 Garden 220 1996 NAP 95.0% 09/20/2006
147 Garden 224 1995 NAP 90.6% 09/21/2006
155 Garden 216 1996 NAP 98.6% 09/19/2006
156 Garden 156 1997 NAP 98.1% 10/09/2006
166 Garden 176 1996 NAP 95.0% 09/27/2006
167 Senior Housing 138 2004 NAP 100.0% 09/27/2006
172 Garden 233 1995 NAP 99.6% 09/18/2006
182 Garden 152 1996 NAP 91.5% 09/20/2006
183 Garden 48 1996 NAP 91.5% 09/20/2006
185 Garden 184 1993 NAP 79.3% 09/20/2006
192 Garden 144 1999 NAP 91.0% 09/27/2006
194 Garden 158 1995 NAP 96.8% 06/30/2006
206 Garden 160 1995 NAP 91.9% 09/20/2006
207 Garden 180 1995 2005 99.4% 09/21/2006
217 Garden 185 1994 NAP 97.8% 09/19/2006
218 Garden 126 1995 NAP 96.8% 10/03/2006
247 Garden 63 1997/1998 NAP 100.0% 09/20/2006
250 Garden 128 1996 NAP 93.0% 09/29/2006
266 Garden 181 1993 2005 97.2% 09/29/2006
273 Garden 80 2000 NAP 95.0% 09/21/2006
287 Garden 60 1978 2006 100.0% 09/20/2006
Mortgage Loan No. Security Type(7) Lien Position Related Borrower List Cut-Off Date Balance per Unit or SF
----------------- ---------------- ------------- --------------------------------- -----------------------------------
117 Fee First 117, 185, 207, 247 $26,571
118 Fee First 118, 124, 147, 156, 192, 206, 218 $28,917
124 Fee First 118, 124, 147, 156, 192, 206, 218 $28,637
130 Fee First 130, 131 $36,793
131 Fee First 130, 131 $36,793
133 Fee First $30,535
147 Fee First 118, 124, 147, 156, 192, 206, 218 $27,134
155 Fee First 155, 182, 183 $26,277
156 Fee First 118, 124, 147, 156, 192, 206, 218 $35,909
166 Fee First 166, 167 $29,485
167 Fee First 166, 167 $37,539
172 Fee First 172, 217 $21,498
182 Fee First 155, 182, 183 $22,463
183 Fee First 155, 182, 183 $22,463
185 Fee First 117, 185, 207, 247 $24,362
192 Fee First 118, 124, 147, 156, 192, 206, 218 $29,631
194 Fee First 194, 250, 266 $26,802
206 Fee First 118, 124, 147, 156, 192, 206, 218 $24,915
207 Fee First 117, 185, 207, 247 $21,463
217 Fee First 172, 217 $20,036
218 Fee First 118, 124, 147, 156, 192, 206, 218 $29,366
247 Fee First 117, 185, 207, 247 $44,558
250 Fee First 194, 250, 266 $21,691
266 Fee First 194, 250, 266 $13,396
273 Fee First $28,934
287 Fee First $32,140
Mortgage Loan No. Note Date(8) First Payment Date (P&I)(9) First Payment Date (IO)(9) Maturity Date Due Date Grace Period(10)
----------------- ------------ --------------------------- -------------------------- ------------- -------- ----------------
117 11/14/1996 12/01/1996 NAP 11/01/2011 1 10
118 03/29/1996 05/01/1996 NAP 04/01/2014 1 10
124 04/11/1997 05/01/1997 NAP 04/01/2015 1 10
130 11/01/2004 12/10/2004 NAP 06/10/2016 10 10
131 10/26/2006 12/10/2006 NAP 06/10/2016 10 10
133 03/10/1998 05/01/1998 NAP 04/01/2013 1 5
147 07/30/1997 09/10/1997 NAP 08/10/2015 10 10
155 09/05/1996 10/01/1996 NAP 09/01/2014 1 10
156 09/30/1997 11/10/1997 NAP 10/10/2015 10 0
166 05/08/1996 06/01/1996 NAP 05/01/2014 1 10
167 07/08/2005 08/10/2005 NAP 07/10/2020 10 10
172 12/30/1996 02/01/1997 NAP 01/01/2022 1 10
182 12/30/1996 02/01/1997 NAP 01/01/2015 1 10
183 12/30/1996 02/01/1997 NAP 01/01/2015 1 10
185 10/28/1996 12/01/1996 NAP 11/01/2011 1 10
192 09/29/1998 11/10/1998 NAP 10/10/2016 10 10
194 07/18/1996 09/01/1996 NAP 08/01/2014 1 10
206 02/14/1996 03/01/1996 NAP 02/01/2014 1 10
207 02/29/1996 04/01/1996 NAP 03/01/2011 1 10
217 12/22/1995 02/01/1996 NAP 01/01/2021 1 10
218 07/03/1996 08/01/1996 NAP 07/01/2021 1 10
247 05/02/2000 07/01/2000 NAP 06/01/2015 1 10
250 04/15/1997 05/01/1997 NAP 04/01/2017 1 10
266 12/22/1995 02/01/1996 NAP 01/01/2021 1 10
273 09/20/2001 11/10/2001 NAP 10/10/2016 10 10
287 09/29/2005 11/10/2006 11/10/2005 10/10/2021 10 10
Mortgage Loan No. ARD Loan Lockbox Status Lockbox Type Original Term to Maturity Remaining Term to Maturity
----------------- -------- -------------- ------------ ------------------------- --------------------------
117 No None NAP 180 59
118 No None NAP 216 88
124 No None NAP 216 100
130 No None NAP 139 114
131 No None NAP 115 114
133 No None NAP 180 76
147 No None NAP 216 104
155 No None NAP 216 93
156 No None NAP 216 106
166 No None NAP 216 89
167 No None NAP 180 163
172 No None NAP 300 181
182 No None NAP 216 97
183 No None NAP 216 97
185 No None NAP 180 59
192 No None NAP 216 118
194 No None NAP 216 92
206 No None NAP 216 86
207 No None NAP 180 51
217 No None NAP 300 169
218 No None NAP 300 175
247 No None NAP 180 102
250 No None NAP 240 124
266 No None NAP 300 169
273 No None NAP 180 118
287 No None NAP 192 178
Mortgage Loan No. Original Amort. Term (11) Remaining Amort. Term Mortgage Rate Monthly Payment (P&I) Monthly Payment (IO)
----------------- ------------------------- --------------------- ------------- --------------------- ---------------------
117 360 239 8.810% $68,026 NAP
118 360 232 8.000% $64,755 NAP
124 360 244 8.550% $63,458 NAP
130 360 335 5.930% $37,667 NAP
131 360 359 6.320% $3,784 NAP
133 360 256 9.100% $58,452 NAP
147 360 246 8.540% $52,480 NAP
155 360 237 8.400% $49,139 NAP
156 360 250 8.380% $47,451 NAP
166 360 233 8.580% $45,818 NAP
167 360 343 7.500% $36,709 NAP
172 360 241 8.450% $43,244 NAP
182 360 241 8.740% $30,560 NAP
183 360 241 8.740% $9,055 NAP
185 360 239 8.680% $39,477 NAP
192 360 262 6.750% $31,172 NAP
194 360 236 8.610% $37,283 NAP
206 360 230 7.500% $32,724 NAP
207 360 231 7.750% $32,239 NAP
217 336 205 8.450% $34,222 NAP
218 360 235 8.050% $31,334 NAP
247 360 282 8.810% $23,612 NAP
250 360 244 8.750% $24,388 NAP
266 300 169 8.400% $24,514 NAP
273 360 298 8.930% $19,351 NAP
287 360 358 6.340% $12,009 $10,207
Mortgage Loan No. Third Most Recent NOI Third Most Recent NOI End Date Second Most Recent NOI
----------------- --------------------- ------------------------------ ----------------------
117 $1,169,711 12/31/2004 $1,292,266
118 $893,591 12/31/2004 $746,338
124 $1,341,840 12/31/2004 $1,119,356
130 NAP NAP $639,258
131 NAP NAP $639,258
133 $673,657 12/31/2004 $614,168
147 $353,703 12/31/2004 $523,141
155 $735,181 12/31/2004 $776,490
156 $809,930 12/31/2004 $809,425
166 $735,027 12/31/2004 $897,819
167 NAP NAP NAP
172 $478,633 12/31/2004 $599,471
182 $419,937 12/31/2004 $375,254
183 $132,611 12/31/2004 $120,478
185 $340,660 12/31/2004 $438,933
192 $562,167 12/31/2004 $529,468
194 $418,050 12/31/2004 $425,625
206 $530,637 12/31/2004 $595,814
207 $416,058 12/31/2004 $513,642
217 $588,800 12/31/2004 $575,494
218 $577,333 12/31/2004 $536,632
247 $263,408 12/31/2004 $296,498
250 $293,287 12/31/2004 $327,946
266 $190,463 12/31/2004 $312,027
273 $207,511 12/31/2004 $299,454
287 NAP NAP NAP
Mortgage Loan No. Second Most Recent NOI End Date Most Recent NOI Most Recent NOI End Date Underwritten EGI
----------------- ------------------------------- --------------- ------------------------ ----------------
117 12/31/2005 $1,378,289 06/30/2006 $2,610,264
118 12/31/2005 $874,556 06/30/2006 $2,174,300
124 12/31/2005 $1,279,163 06/30/2006 $2,532,483
130 12/31/2005 $664,237 06/30/2006 $1,484,522
131 12/31/2005 $664,237 06/30/2006 $1,484,522
133 12/31/2005 $746,033 06/30/2006 $1,731,637
147 12/31/2005 $712,293 06/30/2006 $1,569,754
155 12/31/2005 $962,143 06/30/2006 $1,999,905
156 12/31/2005 $834,874 06/30/2006 $1,786,946
166 12/31/2005 $1,041,064 06/30/2006 $1,861,056
167 NAP $569,211 06/30/2006 $1,062,782
172 12/31/2005 $675,993 06/30/2006 $1,501,175
182 12/31/2005 $444,880 06/30/2006 $1,214,103
183 12/31/2005 $140,489 06/30/2006 $354,903
185 12/31/2005 $510,618 06/30/2006 $1,121,385
192 12/31/2005 $601,759 06/30/2006 $1,390,681
194 12/31/2005 $488,352 06/30/2006 $962,096
206 12/31/2005 $626,494 06/30/2006 $1,238,551
207 12/31/2005 $520,200 06/30/2006 $1,339,537
217 12/31/2005 $569,455 06/30/2006 $1,200,956
218 12/31/2005 $640,003 06/30/2006 $1,073,490
247 12/31/2005 $308,438 06/30/2006 $604,371
250 12/31/2005 $417,302 06/30/2006 $803,684
266 12/31/2005 $455,347 06/30/2006 $1,065,441
273 12/31/2005 $297,554 06/30/2006 $506,140
287 NAP $187,736 06/30/2006 $439,004
Mortgage Loan No. Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow Balloon Balance
----------------- --------------------- ----------------- --------------------- ----------------------- ---------------
117 $1,276,369 $1,333,895 $57,600 $1,276,295 $6,799,967
118 $1,180,517 $993,783 $52,800 $940,983 $6,006,800
124 $1,337,794 $1,194,689 $51,200 $1,143,489 $5,724,779
130 $824,984 $659,538 $36,800 $622,738 $5,070,714
131 $824,984 $659,538 $36,800 $622,738 $521,096
133 $967,510 $764,127 $44,000 $720,127 $6,033,374
147 $839,728 $730,026 $44,800 $685,226 $4,683,138
155 $1,067,379 $932,526 $43,200 $889,326 $4,466,555
156 $955,660 $831,286 $31,200 $800,086 $4,317,472
166 $868,973 $992,083 $35,200 $956,883 $4,126,776
167 $492,756 $570,026 $28,000 $542,026 $3,971,782
172 $741,258 $759,917 $46,600 $713,317 $2,137,959
182 $700,096 $514,007 $30,400 $483,607 $2,730,376
183 $221,082 $133,821 $9,600 $124,221 $808,905
185 $587,056 $534,329 $36,800 $497,529 $3,976,588
192 $745,230 $645,451 $28,800 $616,651 $3,084,450
194 $475,335 $486,761 $31,600 $455,161 $3,353,275
206 $650,375 $588,177 $32,000 $556,177 $3,113,979
207 $792,515 $547,022 $36,000 $511,022 $3,434,888
217 $643,138 $557,818 $36,800 $521,018 $1,111,275
218 $520,255 $553,235 $25,200 $528,035 $1,563,620
247 $288,782 $315,589 $9,450 $306,139 $2,359,982
250 $392,563 $411,121 $25,600 $385,521 $1,955,871
266 $570,492 $494,949 $36,000 $458,949 $24,273
273 $237,864 $268,276 $16,000 $252,276 $1,920,372
287 $257,585 $181,419 $15,000 $166,419 $1,397,238
Mortgage Loan No. Current Value(12) Source of Value(12) Market Study Capitalization Rate(12) Valuation Date Largest Tenant(12)
----------------- ----------------- ------------------- ------------------------------------ -------------- ------------------
117 $19,761,407 Market Study 6.750% 09/22/2006 NAP
118 $13,250,440 Market Study 7.500% 09/21/2006 NAP
124 $17,080,701 Market Study 7.625% 09/21/2006 NAP
130 $14,089,621 Market Study 6.250% 09/21/2006 NAP
131 $14,089,621 Market Study 6.250% 09/21/2006 NAP
133 $15,114,596 Market Study 6.550% 09/20/2006 NAP
147 $12,675,717 Market Study 6.250% 09/21/2006 NAP
155 $14,632,684 Market Study 6.500% 09/19/2006 NAP
156 $14,532,445 Market Study 6.500% 10/09/2006 NAP
166 $14,697,526 Market Study 6.750% 09/27/2006 NAP
167 $12,930,537 Market Study 6.625% 09/27/2006 NAP
172 $11,053,338 Market Study 6.875% 09/18/2006 NAP
182 $8,086,286 Market Study 6.875% 09/20/2006 NAP
183 $1,946,752 Market Study 6.875% 09/20/2006 NAP
185 $7,633,271 Market Study 7.000% 09/20/2006 NAP
192 $10,578,076 Market Study 7.750% 09/27/2006 NAP
194 $6,280,787 Market Study 7.750% 09/20/2006 NAP
206 $8,402,529 Market Study 7.000% 09/20/2006 NAP
207 $8,162,534 Market Study 6.750% 09/21/2006 NAP
217 $8,581,815 Market Study 6.500% 09/19/2006 NAP
218 $7,729,963 Market Study 7.250% 10/03/2006 NAP
247 $5,303,644 Market Study 7.750% 09/20/2006 NAP
250 $5,741,581 Market Study 7.875% 09/29/2006 NAP
266 $6,711,173 Market Study 7.375% 09/29/2006 NAP
273 $9,330,823 Market Study 6.500% 09/21/2006 NAP
287 $4,173,285 Market Study 8.125% 09/20/2006 NAP
Mortgage Loan No. Lease Expiration Date % NSF Second Largest Tenant(13) Lease Expiration Date % NSF Third Largest Tenant(13)
----------------- --------------------- ----- ------------------------- --------------------- ----- ------------------------
117 NAP NAP NAP NAP NAP NAP
118 NAP NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP NAP
130 NAP NAP NAP NAP NAP NAP
131 NAP NAP NAP NAP NAP NAP
133 NAP NAP NAP NAP NAP NAP
147 NAP NAP NAP NAP NAP NAP
155 NAP NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP NAP
166 NAP NAP NAP NAP NAP NAP
167 NAP NAP NAP NAP NAP NAP
172 NAP NAP NAP NAP NAP NAP
182 NAP NAP NAP NAP NAP NAP
183 NAP NAP NAP NAP NAP NAP
185 NAP NAP NAP NAP NAP NAP
192 NAP NAP NAP NAP NAP NAP
194 NAP NAP NAP NAP NAP NAP
206 NAP NAP NAP NAP NAP NAP
207 NAP NAP NAP NAP NAP NAP
217 NAP NAP NAP NAP NAP NAP
218 NAP NAP NAP NAP NAP NAP
247 NAP NAP NAP NAP NAP NAP
250 NAP NAP NAP NAP NAP NAP
266 NAP NAP NAP NAP NAP NAP
273 NAP NAP NAP NAP NAP NAP
287 NAP NAP NAP NAP NAP NAP
Mortgage Loan No. Lease Expiration Date % NSF Insurance Escrow in Place Tax Escrow in Place(14)
----------------- --------------------- ----- ------------------------- -----------------------
117 NAP NAP No Yes
118 NAP NAP No Yes
124 NAP NAP No Yes
130 NAP NAP No Yes
131 NAP NAP No No
133 NAP NAP No Yes
147 NAP NAP No Yes
155 NAP NAP No Yes
156 NAP NAP No Yes
166 NAP NAP No Yes
167 NAP NAP No Yes
172 NAP NAP No Yes
182 NAP NAP No Yes
183 NAP NAP No Yes
185 NAP NAP No Yes
192 NAP NAP No Yes
194 NAP NAP No Yes
206 NAP NAP No Yes
207 NAP NAP No Yes
217 NAP NAP No Yes
218 NAP NAP No Yes
247 NAP NAP No Yes
250 NAP NAP No Yes
266 NAP NAP No Yes
273 NAP NAP No Yes
287 NAP NAP No Yes
Mortgage Loan No. Capital Expenditure Escrow in Place(15) TI/LC Escrow in Place(16) Other Escrow Description(17)
----------------- --------------------------------------- ------------------------- ----------------------------
117 Yes No NAP
118 Yes No NAP
124 Yes No NAP
130 Yes No NAP
131 No No NAP
133 Yes No NAP
147 Yes No NAP
155 Yes No NAP
156 Yes No NAP
166 Yes No NAP
167 Yes No NAP
172 Yes No NAP
182 Yes No NAP
183 Yes No NAP
185 Yes No NAP
192 Yes No NAP
194 Yes No NAP
206 Yes No NAP
207 Yes No NAP
217 Yes No NAP
218 Yes No NAP
247 Yes No NAP
250 Yes No NAP
266 Yes No NAP
273 Yes No NAP
287 Yes No NAP
Mortgage Loan No. Springing Escrow Description(18) Initial Capital Expenditure Escrow Requirement(19)
----------------- -------------------------------- --------------------------------------------------
117 Insurance $150
118 Insurance $200
124 Insurance $150
130 Insurance $200
131 NAP $0
133 Insurance $200
147 NAP $200
155 Insurance $200
156 Insurance $200
166 Insurance $200
167 Insurance $200
172 Insurance $200
182 Insurance $200
183 Insurance $200
185 Insurance $175
192 Insurance $150
194 Insurance $200
206 Insurance $200
207 Insurance $200
217 Insurance $200
218 Insurance $200
247 Insurance $200
250 Insurance $200
266 Insurance $200
273 Insurance $200
287 Insurance $200
Mortgage Loan No. Monthly Capital Expenditure Escrow Requirement(20) Current Capital Expenditure Escrow Balance(21)
----------------- -------------------------------------------------- ----------------------------------------------
117 $6,000 $31,612
118 $4,400 $166,942
124 $4,267 $291,369
130 $3,067 $207,922
131 $0 $0
133 $5,844 $13,586
147 $3,733 $114,447
155 $3,600 $140,131
156 $2,600 $221,596
166 $2,933 $144,159
167 $2,300 $34,622
172 $3,883 $559,403
182 $2,533 $99,712
183 $800 $31,488
185 $4,217 $67,917
192 $2,400 $230,723
194 $2,633 $150,516
206 $2,667 $119,363
207 $3,750 $1,255
217 $3,083 $201,826
218 $1,838 $177,662
247 $1,050 $1,007
250 $2,133 $382
266 $3,017 $264,792
273 $1,333 $16,801
287 $1,500 $13,513
Mortgage Loan No. Initial TI/LC Escrow Requirement(22) Monthly TI/LC Escrow Requirement(23) Current TI/LC Escrow Balance(24)
----------------- ------------------------------------ ------------------------------------ --------------------------------
117 $0 $0 $0
118 $0 $0 $0
124 $0 $0 $0
130 $0 $0 $0
131 $0 $0 $0
133 $0 $0 $0
147 $0 $0 $0
155 $0 $0 $0
156 $0 $0 $0
166 $0 $0 $0
167 $0 $0 $0
172 $0 $0 $0
182 $0 $0 $0
183 $0 $0 $0
185 $0 $0 $0
192 $0 $0 $0
194 $0 $0 $0
206 $0 $0 $0
207 $0 $0 $0
217 $0 $0 $0
218 $0 $0 $0
247 $0 $0 $0
250 $0 $0 $0
266 $0 $0 $0
273 $0 $0 $0
287 $0 $0 $0
Prepayment Code(26)
------------------------------------
Mortgage Loan No. Environmental Insurance Interest Accrual Method Seasoning(25) LO DEF DEF/YM1 YM1 YM2 YM
----------------- ----------------------- ----------------------- ------------- --- --- ------- --- --- --
117 No 30/360 121 120 53
118 No 30/360 128 120 89
124 No 30/360 116 120 89
130 ▇▇ ▇▇/▇▇▇ ▇▇ ▇▇▇ ▇
▇▇▇ ▇▇ 30/360 1 109 2
133 No Actual/360 104 119 60
147 No 30/360 112 120 92
155 No 30/360 123 119 90
156 No 30/360 110 120 92
166 No 30/360 127 120 89
167 ▇▇ ▇▇/▇▇▇ ▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇ 30/360 119 119 177
182 No 30/360 119 119 90
183 No 30/360 119 119 90
185 No 30/360 121 120 56
192 ▇▇ ▇▇/▇▇▇ ▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇ 30/360 124 108 104
206 No 30/360 130 120 89
207 No 30/360 129 120 56
217 No 30/360 131 120 176
218 No 30/360 125 296
247 No 30/360 78 120 57
250 No 30/360 116 120 116
266 No 30/360 131 120 176
273 No 30/360 62 119 57
287 No 30/360 14 167 22
Prepayment Code(26)
---------------------
Mortgage Loan No. 5% 4% 3% 2% 1% Open YM Formula(27) Administrative Cost Rate(28) Mortgage Loan No.
----------------- - - - - - ---- -------------- ---------------------------- -----------------
117 7 G 10.075 117
118 7 G 10.075 118
124 7 G 10.075 124
130 4 J 10.075 130
131 4 J 10.075 131
133 1 K 10.075 133
147 4 M 10.075 147
155 7 G 10.075 155
156 4 M 10.075 156
166 7 G 10.075 166
167 3 N 10.075 167
172 4 G 10.075 172
182 7 M 10.075 182
183 7 M 10.075 183
185 4 G 10.075 185
192 7 M 10.075 192
194 4 G 10.075 194
206 7 G 10.075 206
207 4 G 10.075 207
217 4 G 10.075 217
218 4 G 10.075 218
247 3 J 10.075 247
250 4 G 10.075 250
266 4 G 10.075 266
273 4 M 10.075 273
287 3 S 10.075 287
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
Except as otherwise set forth on the schedules to this Exhibit 2,
the Seller hereby makes the following representations and warranties.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and (assuming that the Purchaser
has the capacity to acquire such Mortgage Loan) has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained. None of the Mortgage Loan documents
restricts the Seller's right to transfer the Mortgage Loan to the Purchaser or
the Trustee.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the value or current use or operation of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
Assignment of Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment, and,
assuming that the assignee has the capacity to acquire such Mortgage, sufficient
to convey to the assignee named therein all of the assignor's right, title and
interest in, to and under such Mortgage. Such Mortgage, together with any
separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in the operation of the
related Mortgaged Property. As of the Closing Date, Uniform Commercial Code
financing statements or continuation statements have been filed and/or recorded
in all places necessary to perfect and keep perfected, until additional actions
are required under the Uniform Commercial Code, a valid security interest in
such personal property, to the extent a security interest may be so created
therein, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority collateral assignment in the related Mortgagor's
interest in all leases, sub-leases, licenses or other agreements pursuant to
which any person is entitled to occupy, use or possess all or any portion of the
real property subject to the related Mortgage, subject to legal limitations of
general applicability to commercial mortgage loans similar to the Mortgage Loan,
and the Mortgagor and each assignor of such Assignment of Leases to the Seller
have the full right to assign the same. The related assignment of any Assignment
of Leases not included in a Mortgage has been executed and delivered in favor of
the Trustee and is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein (assuming that
the assignee has the capacity to acquire such Assignment of Leases) all of the
assignor's right, title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated (except for Permitted
Encumbrances) in whole or in part, and the related Mortgaged Property has not
been released from the lien of such Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such satisfaction, cancellation,
subordination (except for Permitted Encumbrances), rescission or release, in any
manner that, in each case, materially and adversely affects the value of the
related Mortgaged Property except for any partial reconveyances of real property
that are included in the related Mortgage File. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived in any
material respect, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File and none of
the Mortgage Loans have been modified since December 14, 2006.
7. Condition of Property; Condemnation. A property inspection
report was prepared in connection with the origination or securitization of each
Mortgage Loan (except in certain cases where the Mortgaged Property was newly
constructed). With respect to each Mortgaged Property securing a Mortgage Loan
that was the subject of a property inspection report or a Certificate of
Substantial Completion or an Architect's Certificate of Completion prepared on
or after 18 months prior to the Closing Date, other than as disclosed in such
property inspection report or Certificate of Substantial Completion or an
Architect's Certificate of Completion, each such Mortgaged Property is, to the
Seller's knowledge, free and clear of any damage (or adequate reserves therefor
have been established) that would materially and adversely affect its value as
security for the related Mortgage Loan.
With respect to the Mortgaged Properties for which property
inspection reports, Certificates of Substantial Completion or Architect's
Certificate of Completion were prepared prior to 18 months prior to the Closing
Date, (a) such Mortgaged Property is (i) free and clear of any damage that would
materially and adversely affect its value as security for the related Mortgage
Loan; and (ii) in good repair and condition so as not to materially and
adversely affect its value as security for the related Mortgage Loan; and (b)
all building systems contained on such Mortgaged Property are in good working
order so as not to materially and adversely affect its value as security for the
related Mortgage Loan or, in the case of (a) and (b) adequate reserves therefor
have been established or other resources of the Borrower are available.
The Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any Mortgaged
Property. To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, all of the material improvements
on the related Mortgaged Property that were considered in determining the value
of the Mortgaged Property lay wholly within the boundaries of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or pro forma policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to the Permitted Encumbrances
stated therein (or a marked up title insurance commitment or pro forma policy
marked as binding and counter-signed by the title insurer or its authorized
agent on which the required premium has been paid exists which evidences that
such Title Policy will be issued). Each Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid, no material claims have been made thereunder
and no claims have been paid thereunder. No holder under the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
knowledge, the insurer issuing such Title Policy is qualified to do business in
the jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13),
including foreclosure, 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. The related Mortgage Loan documents provide for the appointment of a
receiver of rents following an event of default under such loan documents, to
the extent available under applicable law.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (a) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (b) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions. An environmental site assessment
meeting ASTM standards and assessing all hazards generally assessed for similar
properties (as of the date of such assessment), including type, use and tenants
for such similar properties ("Environmental Report") was performed with respect
to each Mortgaged Property in connection with the origination or securitization
of each Mortgage Loan.
(a) With respect to the Mortgaged Properties for which the
Environmental Reports were prepared on or after 18 months prior to the Closing
Date, other than as disclosed in the related Environmental Report therefor, to
the Seller's knowledge, (X) no Hazardous Material is present on such Mortgaged
Property, such that (1) the value, use or operations of such Mortgaged Property
is materially and adversely affected, or (2) under applicable federal, state or
local law, (i) such Hazardous Material could be required to be eliminated,
remediated or otherwise responded to at a cost or in a manner materially and
adversely affecting the value, use or operations of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished or
transferred or (ii) the presence of such Hazardous Material could (upon action
by the appropriate governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to liability for the
cost of eliminating, remediating or otherwise responding to such Hazardous
Material or the hazard created thereby at a cost or in a manner materially and
adversely affecting the value, use or operations of the Mortgaged Property, and
(Y) such Mortgaged Property is in material compliance with all applicable
federal, state and local laws and regulations pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws or regulations does
not have a material adverse effect on the value, use or operations of such
Mortgaged Property and neither Seller nor, to the Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any notice of any
violation or potential violation of any such law or regulation. With respect to
any condition disclosed in an Environmental Report, which condition constituted
a violation of applicable laws or regulations or would materially and adversely
affect the value, use or operations of the related Mortgaged Property if not
remedied, such condition has either been satisfactorily remedied, consistent
with prudent commercial mortgage lending practices, or the applicable loan
documents contain provisions which address such condition to the satisfaction of
the Seller, consistent with prudent commercial mortgage lending practices, and
adequate funding or resources of the Borrower, consistent with prudent
commercial mortgage lending practices, were available to remedy or otherwise
respond to such condition.
(b) With respect to the remaining Mortgaged Properties for which
the Environmental Reports were prepared prior to 18 months prior to the Closing
Date, (X) no Hazardous Material is present on such Mortgaged Property, such that
(1) the value, use or operations of such Mortgaged Property is materially and
adversely affected, or (2) under applicable federal, state or local law and
regulations, (a) such Hazardous Material could be required to be eliminated,
remediated or otherwise responded to at a cost or in a manner materially and
adversely affecting the value, use or operations of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished or
transferred or (b) the presence of such Hazardous Material could (upon action by
the appropriate governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to liability for the
cost of eliminating, remediating or otherwise responding to such Hazardous
Material or the hazard created thereby at a cost or in a manner materially and
adversely affecting the value, use or operations of the Mortgaged Property, and
(Y) such Mortgaged Property is in material compliance with all applicable
federal, state and local laws and regulations pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws or regulations does
not have a material adverse effect on the value, use or operations of such
Mortgaged Property and neither Seller nor, to the Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any notice of any
violation or potential violation of any such law or regulation. With respect to
any condition disclosed in an Environmental Report, which condition constituted
a violation of applicable laws or regulations or would materially and adversely
affect the value, use or operations of the related Mortgaged Property if not
remedied, such condition has either been satisfactorily remedied, consistent
with prudent commercial mortgage lending practices, or the applicable loan
documents contain provisions which address such condition to the satisfaction of
the Seller, consistent with prudent commercial mortgage lending practices, and
adequate funding or resources of the Borrower, consistent with prudent
commercial mortgage lending practices, were available to remedy or otherwise
respond to such condition.
(c) Each Mortgage requires the related Mortgagor to comply with
all applicable federal, state and local environmental laws and regulations.
(d) In the case of each Mortgage Loan set forth on Schedule 1 to
this Exhibit 2, (i) such Mortgage Loan is the subject of a secured creditor
impaired property policy or a commercial real estate pollution liability policy,
issued by the issuer set forth on Schedule 1 (the "Policy Issuer") and effective
as of the date thereof (the "Environmental Insurance Policy"), (ii) the
Environmental Insurance Policy is in full force and effect, (iii) on the
effective date of the Environmental Insurance Policy and on the Closing Date
Seller had no knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property that was not disclosed to the
Policy Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the Policy Issuer
or (c) an engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through the term of
such policy.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related or
similar materials, and any other substance, material or waste as may be defined
as a hazardous or toxic substance, material or waste by an federal, state or
local environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. ▇▇.▇▇. 9601 et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ▇▇.▇▇. 1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the
Federal Water Pollution Control Act, as amended (33 U.S.C. ▇▇.▇▇. 1251 et seq.),
the Clean Air Act, as amended (42 U.S.C. ▇▇.▇▇. 7401 et seq.), and any
regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and that was executed by
or on behalf of the related Mortgagor is the legal, valid and binding obligation
of the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except with respect to provisions relating to default interest, yield
maintenance charges and prepayment premiums and as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and, to the Seller's knowledge, 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.
14. Insurance. Each Mortgaged Property is required (or the holder
of the Mortgage can require) pursuant to the related Mortgage to be, and at
origination the Seller received evidence that such Mortgaged Property was,
insured by (a) a comprehensive all risk coverage insurance policy covering
damage by fire and other hazards and, to the extent required as of the date of
origination by the originator of such Mortgage Loan consistent with its normal
commercial mortgage lending practices, against other risks insured against by
persons operating like properties in the locality of the Mortgaged Property, in
an amount not less than the actual replacement value of the improvements on the
Mortgaged Property, and with no provisions for a deduction for depreciation in
respect of awards for the reconstruction of the improvements, and not less than
the amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy or coverage, in an amount at least equal to nine (9) months of
operations of the Mortgaged Property; and (c) a flood insurance policy (if any
portion of buildings or other structures (excluding parking) on the Mortgaged
Property are located in an area identified by the Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (which "special flood hazard
area" does not include areas designated by FEMA as Zones B, C or X)). For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either: (i) a
seismic report which indicated a PML of less than 20% was prepared, based on a
450 or 475-year lookback with a 10% probability of exceedance in a 50-year
period, at origination for such Mortgaged Property or (ii) the improvements for
the Mortgaged Property are insured against earthquake damage. With respect to
each Mortgaged Property, such Mortgaged Property is required pursuant to the
related Mortgage to be (or the holder of the Mortgage can require that the
Mortgaged Property be), and at origination the Seller received evidence that
such Mortgaged Property was, insured by a commercial general liability insurance
policy in amounts as are generally required by commercial mortgage lenders for
similar properties, and in any event not less than $1 million per occurrence.
Under such insurance policies either (A) the Seller is named as mortgagee under
a standard mortgagee clause or (B) the Seller is named as an additional insured,
and is entitled to receive prior notice as the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain or cause to be maintained all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain or to cause to be maintained such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage Loan provides that casualty insurance proceeds will be
applied either to the restoration or repair of the related Mortgaged Property or
to the reduction of the principal amount of the Mortgage Loan. Each Mortgage
provides that any related insurance proceeds, other than for a total loss or
taking, will be applied either to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee appointed by the
mortgagee 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 to the payment of the
outstanding principal balance of the Mortgage Loan together with any accrued
interest thereon, and any insurance proceeds in respect of a total or
substantially total loss or taking may be applied either to payment of
outstanding principal and interest on the Mortgage Loan (except as otherwise
provided by law) or to rebuilding of the Mortgaged Property.
15. Taxes and Assessments and Ground Lease Rents. As of the
Closing Date, there are no delinquent taxes, assessments or other outstanding
charges affecting any Mortgaged Property that are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
be considered delinquent commencing from the date on which interest or penalties
would be first payable thereon. As of the Closing Date, there are no delinquent
rents on any ground leases for any Mortgaged Property.
16. Mortgagor Bankruptcy. No Mortgagor is a debtor in any state
or federal bankruptcy or insolvency proceeding and no Mortgaged Property or any
portion thereof is subject to a plan in any such proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate (the "Fee Interest") or the
related Mortgage Loan is secured in whole or in part by the interest of the
related Mortgagor as a lessee under a ground lease of the Mortgaged Property (a
"Ground Lease"), and if secured in whole or in part by a Ground Lease, either
(1) the ground lessor's fee interest is subordinated to the lien of the Mortgage
and the Mortgage will not be subject to any lien or encumbrances on the ground
lessor's fee interest, other than Permitted Encumbrances, and the holder of the
Mortgage is permitted to foreclose the ground lessor's fee interest within a
commercially reasonable time period or (2) the following apply to such Ground
Lease:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be encumbered by the
related Mortgage; does not restrict the use of the related Mortgaged
Property by the lessee or its permitted successors and assigns in a
manner that would materially and adversely affect the security provided
by the related Mortgage; and, to the knowledge of the Seller, there has
been no material change in the payment terms of such Ground Lease since
the origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part of the
related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the ground lessor's related fee interest
and Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and its successors and assigns upon notice to, but
(except in the case where such consent cannot be unreasonably withheld)
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor (except in the case where such
consent cannot be unreasonably withheld);
(d) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
material default by the lessee to the mortgagee (concurrent with notice
given to the lessee), provided that the mortgagee has provided the
lessor with notice of its lien in accordance with the provisions of such
Ground Lease, and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee. The Seller has provided the lessor
under the Ground Lease with notice of the Seller's lien on the Mortgaged
Property in accordance with the provisions of such Ground Lease;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease by
reason of such default;
(g) Such Ground Lease has an original term, along with any
extensions set forth in such Ground Lease, not less than 10 years beyond
the full amortization term of the Mortgage Loan;
(h) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds, other than for
a total loss or taking, will be applied either to the repair or
restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by the mortgagee 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 to the payment
of the outstanding principal balance of the Mortgage Loan together with
any accrued interest thereon, and any insurance proceeds in respect of a
total or substantially total loss or taking may be applied either to
payment of outstanding principal and interest on the Mortgage Loan
(except as otherwise provided by law) or to rebuilding of the Mortgaged
Property;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the Seller; and
such Ground Lease contains a covenant that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would materially and adversely affect the
security provided by the related Mortgage;
(j) Such Ground Lease or an estoppel or other agreement requires
the lessor to enter into a new lease with the Seller or its successors
or assigns under terms which do not materially vary from the economic
terms of the Ground Lease, in the event of a termination of the Ground
Lease by reason of a default by the Mortgagor under the Ground Lease,
including rejection of the Ground Lease in a bankruptcy proceeding; and
(k) Such Ground Lease may not be materially amended, modified or,
except in the case of a default, cancelled or terminated without the
prior written consent of the holder of the Mortgage Loan, and any such
action without such consent is not binding on such holder, including any
increase in the amount of rent payable by the lessee thereunder during
the term of the Mortgage Loan.
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid, and those escrow deposits and payments are
under control of the Seller or its agents.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property that served as the
only real property collateral for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds, or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property (or
any tenant required to make its lease payments directly to the holder of the
related Mortgage Loan), directly or indirectly, for the payment of any amount
required by such Mortgage Loan.
22. No Mechanics' Liens. As of the applicable Mortgage Loan
origination date, and to the Seller's knowledge as of the Closing Date, each
Mortgaged Property is free and clear of any and all mechanics' and materialmen's
liens that are prior or equal to the lien of the related Mortgage and no rights
are outstanding that under law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage except, in each case, for
liens insured against by the Title Policy referred to herein, or, if any such
liens existing as of the Closing Date are not insured against by the Title
Policy referred to herein, such liens will not have a material adverse effect on
the value of the related Mortgaged Property.
23. Compliance with Laws. Except as otherwise specifically
disclosed in an exception on Schedule A attached hereto to another
representation and warranty made by the seller in this Exhibit 2, at
origination, each Mortgage Loan complied with all applicable federal, state and
local statutes and regulations. Each Mortgage Loan complied with (or is exempt
from) all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property that was included in the valuation for such Mortgaged
Property, and/or generates income, from the lien of the related Mortgage except
upon payment in full of all amounts due under the related Mortgage Loan, or upon
satisfaction of the defeasance provisions of such Mortgage Loan, other than the
Mortgage Loans that require the mortgagee to grant a release of a portion of the
related Mortgaged Property upon (a) the satisfaction of certain legal and
underwriting requirements where the portion of the related Mortgaged Property
permitted to be released was not considered by the Seller to be material in
underwriting the Mortgage Loan or, in the case of a substitution, where the
Mortgagor is entitled to substitute a replacement parcel at its unilateral
option upon the satisfaction of specified conditions, and/or (b) the payment of
a release price and prepayment consideration in connection therewith, consistent
with the Seller's normal commercial mortgage lending practices (and in both (a)
and (b), any release of the Mortgaged Property has been reflected in the
Mortgage Loan Schedule). Except as described in the prior sentence (other than
with respect to defeasance and substitution), no Mortgage Loan permits the full
or partial release or substitution of collateral unless (1) the mortgagor is
entitled to substitute a replacement parcel at its unilateral option upon
satisfaction of specified conditions, and (2) the mortgagee or servicer can
require the Mortgagor to provide an opinion of tax counsel to the effect that
such release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. ss.1.8606-2(b)(2) and (b) would not cause such Mortgage Loan to fail to be
a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
The loan documents require the related Mortgagor to bear the cost of such
opinion.
26. No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
27. No Material Default. There exists no material default,
breach, violation or event giving the lender the right to accelerate the
Mortgage Loan (and, to the Seller's knowledge, no event has occurred which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
the Seller elsewhere in this Exhibit 2 or the exceptions listed in Schedule A
attached hereto.
28. Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
29. Local Law Compliance. To the best of Seller's knowledge,
based on due diligence performed at origination that was considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal or internal or external market study performed at origination.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that could reasonably be expected to adversely affect
title to the Mortgaged Property or the validity or enforceability of the related
Mortgage or that could reasonably be expected to materially and adversely affect
the value of the Mortgaged Property as security for the Mortgage Loan or the use
for which the premises were intended. To the Seller's knowledge, as of the
origination of the Mortgage Loan, none of the nonrecourse carveout guarantors or
nonrecourse carveout indemnitors under the Mortgage Loan was a debtor in any
state or federal bankruptcy, insolvency or similar proceeding.
32. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards utilized by commercial lending institutions in the area where the
related Mortgaged Property is located.
33. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan, and to Seller's
knowledge, as of the Closing Date, based on servicing procedures customarily
performed in the Seller's servicing of the Mortgage Loans during the period in
which Seller owned each such Mortgage Loan, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
35. Due on Sale/Due on Encumbrance. Each Mortgage Loan contains a
"due on sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if, without prior written consent
of the holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, is transferred, sold or encumbered by a junior
mortgage or deed of trust; provided, however, that certain Mortgage Loans
provide a mechanism for the assumption of the loan by a third party upon the
Mortgagor's satisfaction of certain conditions precedent, and upon payment of a
transfer fee, if any, or transfer of interests in the Mortgagor or constituent
entities of the Mortgagor to a third party or parties related to the Mortgagor
upon the Mortgagor's satisfaction of certain conditions precedent.
36. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan either provide that (a) such Mortgage Loan is fully recourse to
the Mortgagor or (b) such Mortgage Loan constitutes the non-recourse obligations
of the related Mortgagor and non-recourse guarantors, if any, except that either
(i) such provision does not apply in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents or (ii) such documents provide that the Mortgagor
shall be liable to the holder of the Mortgage Loan for losses incurred as a
result of fraud by the Mortgagor. Except as set forth on Schedule 3 attached
hereto, either the Mortgagor or a guarantor with respect to each Mortgage Loan
is a natural person.
37. Underwriting Policies. Each Mortgage Loan was either
originated by the Seller or an affiliate thereof, and each such origination of a
Mortgage Loan substantially complied with the Seller's underwriting policies in
effect as of such Mortgage Loan's origination date.
38. REMIC Eligibility. Each Mortgage Loan is a "qualified
mortgage" as such term is defined in Section 860G(a)(3) of the Code (without
regard to Treasury Regulations Section 1.860G-2(f)(2), which treats certain
defective mortgage loans as qualified mortgages).
39. Prepayment Premiums. Each prepayment premium or yield
maintenance premium is consistent with those charged by the Seller in its
customary lending practices with respect to loans of the size and character of
the Mortgage Loans.
40. [Reserved]
41. Single Purpose Entity. The Mortgagor on each Mortgage Loan
listed on Schedule 4 attached hereto 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
(or which entity covenanted in the Mortgage Loan documents) 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 or covenanted in the related Mortgage Loan documents,
substantially to the effect that it does not have (or will not obtain) any
assets other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as permitted by
the related Mortgage(s) or the other related Mortgage Loan documents, that it
has its own books and records and accounts separate and apart from any other
person, and that it holds itself out as a legal entity, separate and apart from
any other person.
42. Defeasance and Assumption Costs. If the related Mortgage Loan
Documents provide for defeasance, such documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses of
Lender incurred in connection with the defeasance of such Mortgage Loan and the
release of the related Mortgaged Property. The related Mortgage Loan Documents
require the related Mortgagor to pay all reasonable costs and expenses of Lender
associated with the approval of an assumption of such Mortgage Loan.
43. Defeasance. No Mortgage Loan provides that it can be defeased
prior to the date that is two years after the Closing Date.
44. Confidentiality. There are no provisions in any Note,
Mortgage or related loan documents with respect to any Mortgage Asset, nor any
other agreements or enforceable understandings with any Mortgagor, Mortgagor
principal or guarantor, which restrict the dissemination of information
regarding any Mortgagor, Mortgagor principal, guarantor or Mortgaged Property by
the owner or holder of the Mortgage Asset or requires such owner or holder to
treat any information regarding any Mortgagor, Mortgagor principal, guarantor or
Mortgaged Property as confidential.
45. Borrower Reports. In the case of each Mortgage Loan, the
related Mortgage Loan Documents require the related Borrower, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than quarterly and
financial statements of the Borrower not less frequently than annually (except
if the Mortgage Loan has an outstanding principal balance of less than or equal
to $3,500,000 as of the Cut-Off Date which case the Mortgage Loan Documents
require the borrower, in some cases at the request of the lender, to provide to
the holder of such Mortgage Loan operating statements and (if there is more than
one tenant) rent rolls and/or financial statements of the Borrower annually).
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding Mortgage
Loan representations and warranties set forth in Exhibit 2 to the Mortgage Loan
Purchase Agreement. Any exception listed below in respect of a particular
representation or warranty shall also be deemed to apply to any other applicable
representation or warranty.
Annex A
Control ID # Mortgage Loan Exceptional
-------------------------------------------------------------------------------------------------
Exception to Representation (12): Environmental Conditions.
-------------------------
Congress Park Apartments Initial testing of a sampling of units at some
Savannah Sound Apartments properties indicated radon gas level results above
Chimney Ridge - Phase I the EPA's published guideline level of 4.0
▇▇▇▇▇▇▇▇ Place Apartments picocuries per liter (the "Guideline Level"). Test
Village ▇▇▇▇▇ Estates results were provided to the Borrowers and follow-up
Overland Park Estates by Borrowers has been requested, including suggested
Chimney Ridge Phase II re-testing of the apartments units that had
previously tested above the Guideline ▇▇▇▇▇. ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ all units that tested above
the Guideline Level were re-tested and only one unit
tested above the Guideline Level; as a result
Borrower installed a venting system in that unit.
Exception to Representation (18): Escrow Deposits.
----------------
All Mortgage Loans (other The capital improvements escrow account is held by a
than Fox Crossing third party that is not under control of, or an
Apartments) agent of, the Seller.
Fox Crossing Apartments capital improvements escrow
account is held by a third party that is under
control of, or an agent of, the Seller.
The capital improvements escrow agreement relating
to Ravenwoods apartment is not fully executed.
Exception to Representation (24): Cross-collateralization.
------------------------
Congress Park Apartments The Mortgage Loan is not specifically
Ospreys Landing Apartments cross-defaulted with any senior or subordinate loan
but SS. 4.01(n) of the Mortgage generally provides
that an event of default under any related senior or
subordinate loan shall constitute an event of
default under the Mortgage Loan and there does exist
a subordinate mortgage loan with respect to both of
these loans.
Exception to Representation (30): Junior Liens.
-------------
Congress Park Apartments There are two additional mortgages granted by the
Borrower to Palm Beach County ("PBC") securing
initial principal amounts of $280,000 and $64,500,
respectively. The PBC mortgages are subordinated to
the Mortgage Loan pursuant to recorded
subordination agreements.
Ospreys Landing There is an additional mortgage granted by the
Apartments Borrower to Florida Housing Finance Agency ("FHFA")
securing an initial principal amount of $176,000.
The FHFA mortgage is subordinated to the Mortgage
Loan pursuant to a recorded subordination agreement.
Exception to Representation (36): Non-Recourse Exceptions.
------------------------
Fox Crossing Apartments Guarantor`s obligation is limited to $4,000,000.
Loans on Schedule 1A Only the loans on Schedule 1A provide that a
natural person is obligated in connection with the
non-recourse carve-outs for fraud or willful
misrepresentation, misappropriation of funds,
insurance proceeds, or condemnation proceeds.
Loans on Schedule 1B Only the loans on Schedule 1B provide that a natural
person is obligated in connection with the
non-recourse carve-outs for breaches of
environmental covenants in the Mortgage Loan.
SCHEDULE 1A
List of Mortgage Loans that provide that a natural person is obligated in
connection with the non-recourse carve-outs for fraud or willful
misrepresentation, misappropriation of
funds, insurance proceeds, or condemnation proceeds.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE 1B
List of Mortgage Loans that provide that a natural person is obligated in
connection with the non-recourse carve-outs for breaches of environmental
covenants in the Mortgage Loan.
Fox Crossing Apartments
Ashton of Richmond ▇▇▇▇
▇▇▇▇▇▇▇▇ Commons
Oak Pointe Apartments
Indian River Apartments
Ravenwood Apartments
Arbor Lake Apartments
Park Plaza Apartments
Village ▇▇▇▇▇ Estates
Mission Vista Apartments
Overland Park Estates
SCHEDULE 4
List of Mortgagors on Mortgage Loans that were at
the origination of the Mortgage Loan a
Single Purpose Entity
▇▇▇▇▇▇▇▇ Commons, L.P.
SY Overland Park Investors, L.P.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None.
EXHIBIT 3
PURCHASE PRICE
Purchase Price $131,097,876
Accrued Interest $511,178
----------------
Total $131,609,054
EXHIBIT 4
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Massachusetts Mutual Life Insurance Company
Purchaser: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of December 1, 2006 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other Persons with respect to, all or any
part of the collateral described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
▇▇▇▇ of Sale to be duly executed and delivered on this 21st day of December,
2006.
SELLER: MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: BABSON CAPITAL MANAGEMENT LLC, its
authorized agent
By: _______________________________________
Name:
Title:
PURCHASER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: _______________________________________
Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Capmark Finance Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ARCap Servicing, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
Corporate Trust Office
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
LIMITED POWER OF ATTORNEY
Section 18. Know all persons by these presents; that the
undersigned in its capacity as Seller, having an address of Massachusetts Mutual
Life Insurance Company, c/o Babson Capital Management LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Managing Director, Real
Estate Financing Group (the "Seller"), being duly empowered and authorized to do
so, does hereby make, constitute and appoint Capmark Finance Inc. (the "General
Master Servicer"), ARCap Servicing, Inc., having an address of ▇▇▇▇ ▇▇▇▇▇
▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇ (the "Special
Servicer") and ▇▇▇▇▇ Fargo Bank, N.A. (the "Trustee") as the true and lawful
attorneys-in-fact for the undersigned, in its name, place and stead, and for its
use and benefit:
1. To empower the Trustee, the General Master Servicer and, in
the event of the failure or incapacity of the Trustee and the General Master
Servicer, the Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor, the
General Master Servicer, the Special Servicer, the Trustee and LaSalle Bank
National Association, as Paying Agent and Certificate Registrar with respect to
the Trust and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a
limited power of attorney. The enumeration of specific items, rights, acts or
powers herein is not intended to, nor does it give rise to, and it is not
intended to be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this [__]th day of December,
2006.
Witnessed by: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: [__], its authorized agent
_________________________________ By:______________________________
Print Name: Name:
Title:
STATE OF____________________________)
COUNTY OF___________________________)
On __________________________, before me, a Notary Public in and for said
county, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person acted and executed the instrument.
Witness my hand and official seal.
_________________________________________
Commission Expires: