EXHIBIT 99.1
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of May 16, 2006 (this
"Agreement"), is entered into between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc. (the
"Seller") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of May 1, 2006 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Midland Loan Services, Inc. as
master servicer no. 1 (in such capacity, "Master Servicer No. 1" and, also a
"Master Servicer"), ▇▇▇▇▇ Fargo Bank, National Association as master servicer
no. 2 ("Master Servicer No. 2" and, also a "Master Servicer"), Midland Loan
Services, Inc. as special servicer (in such capacity, the "Special Servicer"),
U.S. Bank National Association as trustee (the "Trustee"), and LaSalle Bank
National Association as certificate administrator (in such capacity, the
"Certificate Administrator") and as custodian (in such capacity, the
"Custodian"). Capitalized terms used but not defined herein (including the
schedules attached hereto) have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
May 16, 2006 (the "Underwriting Agreement"), with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") for itself and as representative of
LaSalle Financial Services, Inc. ("LaSalle Financial"), PNC Capital Markets LLC
("PNC Capital"), ▇▇▇▇▇▇▇, Sachs & Co. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"; ▇▇▇▇▇▇▇ ▇▇▇▇▇, LaSalle Financial, PNC Capital,
▇▇▇▇▇▇▇ Sachs and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, collectively, in such capacity, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates"). The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of May 16, 2006
(the "Certificate Purchase Agreement"), with ▇▇▇▇▇▇▇ ▇▇▇▇▇ for itself and as
representative of LaSalle Financial (together in such capacity, the "Initial
Purchasers"), whereby the Purchaser will sell to the Initial Purchasers all of
the remaining Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be
amended to reflect the actual Mortgage Loans delivered to the Purchaser pursuant
to the terms hereof. The Mortgage Loans are expected to have an aggregate
principal balance of $845,890,832 (the "MLML Mortgage Loan Balance") (subject to
a variance of plus or minus 5.0%) as of the close of business on the Cut-off
Date, after giving effect to any payments due on or before such date, whether or
not such payments are received. The MLML Mortgage Loan Balance, together with
the aggregate principal balance of the Other Mortgage Loans as of the Cut-off
Date (after giving effect to any payments due on or before such date, whether or
not such payments are received), is expected to equal an aggregate principal
balance (the "Cut-off Date Pool Balance") of $2,489,838,695 (subject to a
variance of plus or minus 5%).
The purchase and sale of the Mortgage Loans shall take place on May
25, 2006 or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 99.23389% of the
MLML Mortgage Loan Balance as of the Cut-off Date, plus (ii) $3,347,084, which
amount represents the amount of interest accrued on the MLML Mortgage Loan
Balance, as agreed to by the Seller and the Purchaser. The Purchase
Consideration shall be paid to the Seller or its designee by wire transfer in
immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Pooling and Servicing Agreement, sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement (as defined in
Section 6(a)(i) hereof)), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Custodian (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are
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Specially Designated Mortgage Loan Documents and (ii) on or before the date that
is 30 days after the Closing Date, the remaining documents and instruments
specified below that are not Specially Designated Mortgage Loan Documents with
respect to each Mortgage Loan (the documents and instruments specified below and
referred to in clauses (i) and (ii) preceding, collectively, a "Mortgage File").
All Mortgage Files so delivered will be held by the Custodian in escrow for the
benefit of the Seller at all times prior to the Closing Date. The Mortgage File
with respect to each Mortgage Loan that is a Trust Mortgage Loan shall contain
the following documents:
(i) (A) the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
U.S. Bank National Association, as trustee for the registered holders of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1, or in blank, and (B) in the case of a Loan
Combination, a copy of the executed Mortgage Note for each related
Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name and address (if the assignment is
delivered in blank) and any missing recording information or a certified
copy of that assignment as sent for recording), of (a) the Mortgage, (b)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of U.S.
Bank National Association, as trustee for the registered holders of ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1 (or, in the case of a Loan Combination, in
favor of U.S. Bank National Association, as trustee for the registered
holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1, and in its capacity as lead
lender on behalf of the holder(s) of the related Non-Trust Loan(s)), or in
blank;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan (to the extent not already assigned pursuant to clause (iv)
above) in favor of U.S. Bank National Association, as trustee for the
registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-
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C1 (or, in the case of a Loan Combination, in favor of U.S. Bank National
Association, as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1, and in its capacity as lead lender on behalf of the
holder(s) of the related Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of U.S. Bank National Association, as trustee
for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1, as assignee
(or, in the case of a Loan Combination, in favor of U.S. Bank National
Association, as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1, and in its capacity as lead lender on behalf of the
holder(s) of the related Non-Trust Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) an original or a copy of an intercreditor agreement relating to
permitted debt of the Mortgagor and any intercreditor agreement relating to
mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original form to the Trustee but rather to the
applicable Master Servicer), in each case relating to the subject Mortgage
Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
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(xiii) if such Trust Mortgage Loan is part of a Loan Combination, an
original or a copy of the related Loan Combination Intercreditor Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 180 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Custodian) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Custodian following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Custodian following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and
Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Custodian in connection with any such recording, filing or delivery
performed by the Custodian at the Seller's request and the fees of the
Recording/Filing Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer (which, for purposes of this Agreement, shall
be ▇▇▇▇▇ Fargo Bank, National Association with respect to all of the Mortgage
Loans excluding the Mall of Louisiana Trust Mortgage Loan, and, in case of the
Mall of Louisiana Trust Mortgage Loan, shall be Midland Loan Services, Inc.) in
connection with its duties under the Pooling and Servicing Agreement, and (c)
are in the possession or under the control of the Seller, together with all
unapplied escrow amounts and reserve amounts in the possession or under the
control of the Seller that relate to the Mortgage Loans, shall be delivered or
caused to be delivered by the Seller to the applicable Master Servicer (or, at
the direction of the applicable Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other
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communications, credit underwriting, legal or other due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Custodian,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Custodian or any other person because
the delivery of the mortgage loan checklist is being provided to the Custodian
solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and the Seller has
taken all necessary action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship or
moratorium, (B) other laws relating to or affecting the rights of creditors
generally, or (C) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
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(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Seller, threatened against the Seller in any
court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
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(x) The Prospectus Supplement contains all the information that is
required to be provided in respect of the Seller (that arise from its role
as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans,
the related Mortgagors and the related Mortgaged Properties pursuant to
Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller receives written notice of a Document Defect or a
Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein, cure
such Document Defect or Breach, as the case may be, in all material respects,
which shall include payment of losses and any Additional Trust Fund Expenses
associated therewith or, if such Document Defect or Breach (other than omissions
due solely to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan (which, for the purposes of this clause (i), shall include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement) not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for
purposes of this clause (ii), shall include an REO Loan) not later than the end
of such 90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit into its
Collection Account any Substitution Shortfall Amount in connection therewith;
provided, however, that, unless the Document Defect or Breach would cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach
is capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Certificate Administrator setting forth the reason(s) such
Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to the Specially
Designated Mortgage Loan Documents) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies
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under the related Mortgage Loan, defending any claim asserted by any Mortgagor
or third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien or any collateral securing the Mortgage Loan or for any
immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans determined at the time of repurchase or substitution
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller shall not be greater than the weighted average loan-to-value ratio for
all such Crossed Loans, including the affected Crossed Loan determined at the
time of repurchase or substitution based upon an appraisal obtained by the
Special Servicer at the expense of the Seller; provided, that if such debt
service coverage and loan-to-value criteria are satisfied, any other Crossed
Loan (that is not the Crossed Loan directly affected by the subject Document
Defect or Breach), shall be released from its cross-collateralization and
cross-default provision so long as such Crossed Loan (that is not the Crossed
Loan directly affected by the subject Document Defect or Breach) is held in the
Trust Fund; and provided, further, that the repurchase or replacement of less
than all such Crossed Loans and the release of any Crossed Loan from a
cross-collateralization and cross-default provision shall be further subject to
the delivery by the Seller to the Certificate Administrator, at the expense of
the Seller, of an Opinion of Counsel to the effect that such release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code
or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions. In the event
that one or more of such other Crossed Loans satisfy the aforementioned
criteria, the Seller may elect either to repurchase or substitute for only the
affected Crossed Loan as to which the related Document Defect or Breach exists
or to repurchase or substitute for all of the Crossed Loans in the related
Crossed Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of a Crossed Loan being repurchased shall be
prepared at the expense of the Seller and, where required, with the consent of
the related Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach known to the Seller, the Seller shall
provide, once every ninety days, the officer's certificate to the Certificate
Administrator described above as to the reason(s) such Document Defect or Breach
remains uncured and as to the actions being taken to pursue cure; provided,
however, that, without limiting the effect of the foregoing provisions of this
Section 3(c), if such Document Defect or Breach shall materially and adversely
affect the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to
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the second and third provisos in the sole sentence of the preceding paragraph),
the Seller shall in all cases on or prior to the second anniversary of the
Closing Date either cause such Document Defect or Breach to be cured or
repurchase or substitute for the affected Mortgage Loan (for the avoidance of
doubt, the foregoing two-year period shall not be deemed to be a time limitation
on Seller's right to cure a Document Defect or Breach as set forth in this
Section 3). The delivery of a commitment to issue a policy of lender's title
insurance as described in representation 8 set forth on Schedule I hereto in
lieu of the delivery of the actual policy of lender's title insurance shall not
be considered a Document Defect or Breach with respect to any Mortgage File if
such actual policy of insurance is delivered to the Custodian not later than the
180th day following the Closing Date.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies or some other mutually agreed
upon accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents, or, if the related
Mortgage Loan documents do not so provide, then on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan is modified to terminate the related cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Certificate
Administrator an Opinion of Counsel that such modification shall not cause an
Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section 3(c),
if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released), and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
10
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Custodian or the Trust Fund in connection with
such release, (ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set forth in the Mortgage Loan documents and the Seller
provides an opinion of counsel to the effect that such release would not cause
either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any fees or expenses
that are the subject of a cure by the Seller are subsequently obtained from the
related Mortgagor, the cure payment made by the Seller shall be returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the Seller,
acting in its sole discretion, may effect a repurchase or substitution (in
accordance with the provisions of this Section 3(c) setting forth the manner in
which a Mortgage Loan may be repurchased or substituted) of a Mortgage Loan, as
to which representation 30 set forth on Schedule I has been breached, in lieu of
paying the costs and expenses that were the subject of the breach of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the applicable Master Servicer's Collection
Account, and, if applicable, the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
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At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Custodian and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf the
Certificate Administrator may act) on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
12
breach of, any material contract, agreement or other instrument to which the
Purchaser is a party or by which the Purchaser is bound, which default might
have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP on the Closing
Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties
13
of the Purchaser set forth in Section 4 of this Agreement shall be true and
correct in all material respects as of the Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian and
the applicable Master Servicer, respectively, all documents represented to have
been or required to be delivered to the Custodian and the applicable Master
Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of Ernst
& Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus (as defined in Section 6(d) of this Agreement) and Prospectus
Supplement (as defined in Section 6(d) of this Agreement), respectively, shall
have been delivered; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of May 16, 2006, among the
Seller, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc., LaSalle Bank National Association,
PNC Bank, National Association, Artesia Mortgage Capital Corporation, the
Purchaser, the Underwriters and the Initial Purchasers. Both parties agree to
use their best reasonable efforts to perform their respective obligations
hereunder in a manner that will enable the Purchaser to purchase the Mortgage
Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the agreement(s) pursuant to which the servicing rights with respect
to the Mortgage Loans are being sold to the applicable Master Servicer (such
agreement(s), individually and/or collectively, the "Servicing Rights Purchase
Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller
14
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on such date; and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part that are required under this Agreement to be
performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Free Writing Prospectus and nothing has come to his/her attention
that would lead him/her to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage
Loans or omitted or omit to state therein a material fact necessary in order to
make the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his/her attention that would lead him/her to
believe that the Specified Portions of the Prospectus Supplement, as of the date
of the Prospectus Supplement or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omit to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that would lead him/her to
believe that the Specified Portions of the Memorandum, as of the date thereof or
as of the Closing Date, included or include any untrue statement of a material
fact relating to the Mortgage Loans or omitted or omit to state therein a
material fact necessary in order to make the statements therein related to the
Mortgage Loans, in the light of the circumstances under which they were made,
not misleading.
The "Specified Portions" of the Free Writing Prospectus shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Free Writing Prospectus,
entitled "Certain Statistical Information Regarding the Mortgage Loans" (insofar
as the information contained in Annex A-2 relates to the Mortgage Loans sold by
the Seller hereunder), Annex B to the Free Writing Prospectus entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
15
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Free Writing Prospectus, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Free Writing Prospectus (insofar as such diskette is consistent
with Annex ▇-▇, ▇▇▇▇▇ ▇-▇ and/or Annex B and only insofar as the information
contained therein relates to the Mortgage Loans sold by the Seller hereunder),
and the following sections of the Free Writing Prospectus (only to the extent
that any such information relates to the Seller or the Mortgage Loans sold by
the Seller hereunder and exclusive of any statements in such sections that
purport to describe the servicing and administration provisions of the Pooling
and Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers" and "--The Loan Combination Controlling
Parties", "Summary of Offering Prospectus--The Mortgage Loans and the Mortgaged
Real Properties", "Risk Factors" and "Description of the Mortgage Pool".
The "Specified Portions" of the Prospectus Supplement shall consist of
Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Description of the
Ten Largest Mortgage Loans or Groups of Cross-Collateralized Mortgage Loans"
(insofar as the information contained in Annex C relates to the Mortgage Loans
sold by the Seller hereunder), the diskette which accompanies the Prospectus
Supplement (insofar as such diskette is consistent with Annex ▇-▇, ▇▇▇▇▇ ▇-▇
and/or Annex B and only insofar as the information contained therein relates to
the Mortgage Loans sold by the Seller hereunder), and the following sections of
the Prospectus Supplement (only to the extent that any such information relates
to the Seller or the Mortgage Loans sold by the Seller hereunder and exclusive
of any statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan
Sellers" and "--The Loan Combination Controlling Parties", "Summary of
Prospectus Supplement--The Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors" and "Description of the Mortgage Pool".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated May 5,
2006, and relating to the Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum dated
May 16, 2006, and relating to the Private Certificates;
16
"Prospectus" means the base prospectus dated May 5, 2006.
"Prospectus Supplement" means the prospectus supplement dated May 16,
2006, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means May 16, 2006, at 2:30 p.m.
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of Delaware not earlier than thirty (30) days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Certificate Administrator, the
Custodian, the Underwriters, the Initial Purchasers and each of the Rating
Agencies, together with such other written opinions, including as to insolvency
matters, as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to
17
offset Prepayment Interest Shortfalls), from time to time held or invested in
the applicable Master Servicer's Collection Account, the Distribution Account
or, if established, the REO Account whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 of this Agreement shall
be deemed to be an assignment of any security interest created hereunder; (iv)
the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events. The Seller hereby
agrees to deliver to the Purchaser any disclosure information relating to any
event, specifically relating to the Seller, reasonably determined in good faith
by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form 10-K
by the Trust (in formatting reasonably appropriate for inclusion in such form)
insofar as such disclosure is required under Item 1117 or 1119 of Regulation AB
or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts to deliver
proposed disclosure language relating to any event, specifically relating to the
Seller (in its role as Sponsor), described under Item 1117 or 1119 of Regulation
AB or Item 1.03 to Form 8-K to the Purchaser as soon as reasonably practicable
after the Seller becomes aware of such event and in no event more than two
business days following the occurrence of such event if such event is reportable
under Item 1.03 to Form 8-K. The obligation of the Seller to provide the above
referenced disclosure materials in any fiscal year of the Trust will terminate
upon the Certificate Administrator's filing of a Form 15 with respect to the
Trust as to that fiscal year in accordance with Section 8.16 of the Pooling and
Servicing Agreement or the reporting requirements with respect to the Trust
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), have
otherwise automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section 9 will be used in the
preparation of reports on Form 8-K, Form 10-D or Form 10-K with respect to the
Trust as required under the 1934 Act and any applicable rules promulgated
thereunder and as required under Regulation AB.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent either
by certified mail (return receipt requested) or by courier service (proof of
delivery requested) and also by facsimile transmission to the intended recipient
at the "Address for Notices" specified for such party on Exhibit A hereto, or as
to either party, at such other address as shall be designated by such party
18
in a notice hereunder to the other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
received (in the case of a notice sent by mail or courier service) or
transmitted (in the case of a faxed notice), in each case given or addressed as
aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY THIS AGREEMENT AND
THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue
19
it without the concurrence of the other party, such other party shall be deemed
the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth
20
in Schedule I hereto and each of the capitalized terms used herein but defined
in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 21. In addition, if there exists with respect to
any Crossed Loan Group only one original of any document referred to in the
definition of "Mortgage File" in this Agreement and covering all the Mortgage
Loans in such Crossed Loan Group, the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Crossed Loan Group
shall be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan.
[SIGNATURE PAGES TO FOLLOW]
21
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PURCHASER
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
MLMT 2006-C1: MLML Mortgage Loan Purchase Agreement
EXHIBIT A
Seller:
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
c/o Global Commercial Real Estate
Four World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Director of CMBS Securitization
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
Four World Financial Center, 12th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser:
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
c/o Global Commercial Real Estate
Four World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇ World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Director of CMBS Securitization
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
Four World Financial Center, 12th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
24
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to the Purchaser
or its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is, or shall be as of the Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal and/or interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in May 2006 without giving effect to any applicable grace period,
nor was any such payment 30 days or more delinquent since the date of
origination of any Mortgage Loan, without giving effect to any applicable grace
period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however,
to the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy, a
"marked-up" commitment binding upon the title insurer or escrow instructions
binding on the title insurer and irrevocably obligating the title insurer to
issue such title insurance policy); (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy, a "marked-up" commitment binding upon
the title insurer or escrow instructions binding on the title insurer and
irrevocably obligating the title insurer to issue such title insurance policy);
(d) other matters to which like properties are commonly subject; (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property; (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Crossed Group; (g) if the related Mortgaged
Property consists of one or more units in a condominium, the related condominium
declaration; and (h) the rights of the holder of any Non-Trust Loan that is part
of a related Loan Combination to which any such Mortgage Loan belongs. The
Permitted Encumbrances do not, individually or in the aggregate, materially
interfere with the security intended to be provided by the related Mortgage, the
current principal use of the related Mortgaged Property, the Value of the
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan. The related assignment
of such Mortgage executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and constitutes
a legal, valid, binding and, subject to the limitations and exceptions set forth
in representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any related Non-Trust Loan that is part of a related Loan Combination to
which any such Mortgage Loan belongs, and except that a license may have been
granted to the related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases, including, without
limitation, the right to operate the related leased property so long as no event
of default has occurred under such Mortgage Loan; and each assignor thereunder
has the full right to assign the same. The related assignment of any Assignment
of Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid, binding and, subject to the limitations
and exceptions set forth in representation 13 below, enforceable assignment of
such Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession of the related Mortgaged Property to collect
the rents
I-2
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default beyond applicable notice and grace periods. Except for the
holder of the related Non Trust Loan with respect to any Mortgage Loan that is
part of a Loan Combination, no person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any manner, (b) neither the
related Mortgaged Property nor any material portion thereof has been released
from the lien of such Mortgage and (c) the related Mortgagor has not been
released from its obligations under such Mortgage, in whole or in material part.
With respect to each Mortgage Loan, since the later of (a) May 5, 2006 and (b)
the closing date of such Mortgage Loan, the Seller has not executed any written
instrument that (i) impaired, satisfied, canceled, subordinated or rescinded
such Mortgage Loan, (ii) waived, modified or altered any material term of such
Mortgage Loan, (iii) released the Mortgaged Property or any material portion
thereof from the lien of the related Mortgage, or (iv) released the related
Mortgagor from its obligations under such Mortgage Loan in whole or material
part. For avoidance of doubt, the preceding sentence does not relate to any
release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge based upon surveys and/or the title
insurance policy referred to in representation 8 below, as of the date hereof,
(a) none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
I-3
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy, a "marked up" commitment binding on the
title insurer or escrow instructions binding on the title insurer irrevocably
obligating the title insurer to issue such title insurance policy) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances, except that in
the case of a Mortgage Loan as to which the related Mortgaged Property is made
up of more than one parcel of property, each of which is secured by a separate
Mortgage, such Mortgage (and therefore the related Title Policy) may be in an
amount less than the original principal amount of the Mortgage Loan, but is not
less than the allocated amount of subject parcel constituting a portion of the
related Mortgaged Property. Such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole insured without the consent of or notice to the insurer. Such Title Policy
contains no material exclusion for whether, or it affirmatively insures (unless
the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
(pending the satisfaction of certain conditions relating to leasing, repair or
other matters with respect to the related Mortgaged Property) documented as part
of the Mortgage Loan documents and the rights to which are transferred to the
Trustee) and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, judicial or non-judicial foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located). None of the Mortgage Loan documents contains any provision
that expressly excuses the related Mortgagor from obtaining and maintaining
insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are or will become payable to such
I-4
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or
I-5
conditions with respect to such Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Mortgagor questionnaire
delivered to the Seller in connection with the issue of any related
environmental insurance policy, if applicable, that would require investigation
or remediation by the related Mortgagor under, or otherwise be a material
violation of, any applicable environmental law. The Mortgage Loan documents for
each Mortgage Loan require the related Mortgagor to comply in all material
respects with all applicable federal, state and local environmental laws and
regulations. Each of the Mortgage Loans identified on Annex C hereto is covered
by a secured creditor environmental insurance policy and each such policy is
noncancellable during its term, is in the amount at least equal to 125% of the
principal balance of the Mortgage Loan, has a term ending no sooner than the
date which is five years after the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials. The related
Mortgagor (or affiliate thereof) has agreed to indemnify, defend and hold the
Seller and its successors and assigns harmless from and against any and all
losses, liabilities, damages, injuries, penalties, fines, out-of-pocket expenses
and claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or one form of action law or
market value limit deficiency legislation), enforceable in accordance with its
terms, except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer and conveyance or other
similar laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (iii) public policy
considerations underlying applicable securities laws, to the extent that such
public policy considerations limit the enforceability of provisions that purport
to provide indemnification from liabilities under applicable securities laws,
and except that certain provisions in such loan documents may be further limited
or rendered unenforceable by applicable law, but (subject to the limitations set
forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
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14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement basis, (2) the outstanding principal balance of such
Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable federal flood insurance program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or ▇▇▇▇▇'▇ of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably
I-7
acceptable to a prudent commercial mortgage lender or that would not otherwise
materially and adversely affect the security intended to be provided by the
related Mortgage, the Mortgage Loan documents for each Mortgage Loan provide
that proceeds paid under any such casualty insurance policy will (or, at the
lender's option, will) be applied either to the repair or restoration of all or
part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining after
the repair or restoration of the related Mortgaged Property or payment of
amounts due under the Mortgage Loan; and provided, further, that, if the related
Mortgagor holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
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18. Material Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
promptly and duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File; and if required
by such Ground Lease, the lessor thereunder has received notice of the lien
of the related Mortgage in accordance with the provisions of such Ground
Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term, which together with extension
options that are exercisable by the lender upon its taking possession of
the Mortgagor's leasehold interest and that, if exercised, would cause the
term of such Ground Lease to extend not less than twenty (20) years beyond
the Stated Maturity Date of such Mortgage Loan;
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(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, taken together, any related casualty
insurance proceeds (other than de minimis amounts for minor casualties)
with respect to the leasehold interest will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced
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funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property (other than (a)
amounts paid by the tenant as specifically provided under a related lease or by
the property manager or (b) application and commitment fees, escrow funds,
points and reimbursements for fees and expenses incurred in connection with the
origination and funding of the Mortgage Loan), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) subject to
available funds, a portion of the cash flow generated by such Mortgaged Property
will be applied each month to pay down the principal balance thereof in addition
to the principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. Except with respect to another Mortgage Loan
(which will also be an asset of the Trust Fund) cross-collateralized with a
Mortgage Loan, none of the Mortgage Loans permits the related Mortgaged Property
to be encumbered by any other mortgage lien junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. To the Seller's knowledge, except as indicated in the
preceding sentence and except for cases involving other Mortgage Loans, none of
the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. The related Mortgage Loan documents require the Mortgagor under each
Mortgage Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including any applicable Rating Agency fees, or would
permit the related mortgagee to withhold such consent if such costs and expenses
are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and
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clear of any and all mechanics' and materialmen's liens that were prior or equal
to the lien of the related Mortgage and that were not bonded or escrowed for or
covered by title insurance. As of the Closing Date, to the Seller's knowledge:
(i) each Mortgaged Property securing a Mortgage Loan (exclusive of any related
personal property) is free and clear of any and all mechanics' and materialmen's
liens that are prior or equal to the lien of the related Mortgage and that are
not bonded or escrowed for or covered by title insurance, and (ii) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance. Other than any default interest or late charges, each
Mortgage Loan (other than ARD Loans after their respective Anticipated Repayment
Dates) complied with, or was exempt from, all applicable usury laws in effect at
its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
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Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a) (16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate, late charge or prepayment premium.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, after due inquiry
consistent with the inquiry a reasonably prudent commercial mortgage lender
would conduct under similar circumstances, there exists no material default,
breach, violation or event of acceleration under the Mortgage Note or Mortgage
for any Mortgage Loan (other than payments due but not yet 30 days or more
delinquent); provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that pertains to
or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized
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Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors,
transfers of worn-out or obsolete furniture, furnishings and equipment or
transfers of a similar nature to the foregoing meeting the requirements of the
Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that during the term of the
Mortgage Loan it may only own and operate 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 generally further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan (which term
includes any Mortgage Loan that is part of a Loan Combination, but does not
include any related Non-Trust Loan) and not a participation interest in a
mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a
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valid security interest in all items of personal property owned by the related
Mortgagor which are material to the conduct in the ordinary course of the
Mortgagor's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more UCC
financing statements covering such personal property have been filed and/or
recorded (or have been sent for filing or recording or submitted to a title
company for filing or recording pursuant to escrow instructions) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a UCC financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan provides
for interest only payments prior to its Stated Maturity Date or, in the case of
an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan begins
to amortize prior to its Stated Maturity Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor or an entity controlled by a principal of such Mortgagor, for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation awards. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
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45. Fee Simple Interest. Unless such Mortgage Loan is secured in whole
or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than fifteen (15) days from the applicable Due Date
or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession related to
such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
I-16
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
I-17
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES*
Representation #2-Ownership of Mortgage Loans
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Representation #4- Lien; Valid Assignment
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Ashford Hotel Portfolio 7 With respect to four properties
comprising the Mortgaged Property,
an affiliate of Marriott
International, Inc. serves as
manager of the Mortgaged Property
and, pursuant to the applicable
management agreements, maintains
escrow reserve accounts for payment
of taxes and insurance, and for
replacement of furniture, fixtures
and equipment. The lender does not
have a security interest in these
escrow accounts held by the manager.
Hampton Inn - Herald Square The Lender has a valid and
enforceable first priority lien on
the fee estate of the related
Mortgaged Property and a direct
assignment by Borrower, as assignor,
to Lender, as assignee, of that
certain Master Lease (the "Master
Lease") between the Borrower, as
Master Lessor, and 44 New England
Management Company, an affiliate of
the Borrower, as Master Lessee. The
Master Lessee assigned its rights in
any subleases and its rights to
Rents and receipts with respect to
the Property under the Master Lease
to the Borrower pursuant to a Lessee
Assignment of Rents and Leases and
Security Agreement in order to
ensure that the Master Lease is a
"true lease" for tax purposes, and
thus, only by virtue of the
assignment of the Master Lease from
Borrower to Lender, shall the
subleases and receipts be indirectly
assigned to Lender. In addition to
Lender's first priority lien on the
fee estate of the mortgaged Property
and assignment of the Master Lease
and its respective subleases, the
Master Lease is also subordinated to
the mortgage and Lender's rights
under the loan documents pursuant to
a Subordination and Security
Agreement executed by the Master
Lessee for the benefit of Lender
(the "Subordination Agreement").
Lifetime Fitness The Mortgaged Property remains
subject to a Right of
First Refusal in favor of Tenant,
but such Right of First Refusal was
subordinated pursuant to an SNDA
executed by the Tenant and Mortgagor
in favor of Lender.
Representation #5- Mortgage Status; Waivers and Modifications
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Hampton Inn - Herald Square As stated in Representation #4
above, the assignment of the Master
Lease from Borrower to Lender will
include an indirect assignment to
Lender of the subleases and receipts
under the Master Lease. Moreover,
the Master Lease is subordinated
pursuant to the Subordination
Agreement.
Representation #6- Mortgage Status; Waivers and Modifications
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
The security interest created by the
related mortgage and any separate
security instrument and the
assignment of leases are for the
benefit of the holder of the
Mortgage Loan included in the trust
and the holders of the other
mortgage loan, not included in the
trust.
Ashford Hotel Portfolio 7 At origination, the Mortgage Loan
was cross-collateralized and
cross-defaulted with three other
loans secured by similar
properties. The Mortgage Loan is no
longer cross-collateralized and
cross-defaulted with the three other
loans pursuant to an automatic
termination provision which was
effective upon the sale of the three
other loans into secondary market
transactions.
Galileo NXL Retail Portfolio 4 At origination, the Mortgage Loan
was cross-collateralized and
cross-defaulted with two other loans
secured by similar properties. The
Mortgage Loan is no longer
cross-collateralized and
cross-defaulted with the two other
loans pursuant to a cross release
notice dated December 5, 2005 in the
case of one loan and a cross release
notice dated March 27, 2006 in the
case of the other loan.
Representation #7-Condition of Property; Condemnation
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Copperwood Plaza A preliminary plan of condemnation
for a public street widening was
issued by the municipality, but the
plan has met community opposition,
is subject to change, has not been
funded and is "on hold"
indefinitely.
Representation #8-Title Insurance
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Only the right title and interest of
the Seller in the mortgage loan
identified on the Mortgage Loan
Schedule is being conveyed to the
Purchaser.
Lifetime Fitness The Mortgaged Property remains
subject to a Right of First Refusal
in favor of Tenant, but such Right
of First Refusal was subordinated
pursuant to an SNDA executed by the
Tenant and Mortgagor in favor of
Lender.
Representation #10-Mortgage Provisions
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Ashford Hotel Portfolio 7 With respect to four properties
comprising the Mortgaged Property,
the Mortgage Loan documents require
the Mortgagors to maintain insurance
coverage for acts of terrorism,
however, the Mortgage Loan documents
also specify that so long as
Marriott International, Inc. or any
affiliate thereof ("Marriott") is
managing the Mortgaged Property, the
related Mortgagors are participating
in Marriott's insurance programs in
accordance with the applicable
management agreements and no default
is continuing under any such
management agreement beyond
applicable notice and cure periods,
the insurance provisions set forth
in the Marriott management
agreements shall control and govern
any inconsistent provisions in the
Mortgage Loan documents. The
Marriott management
agreements shall control and govern
any inconsistent provisions in the
Mortgage Loan documents. The
Marriott management agreements
require terrorism insurance to be
maintained (if excluded under the
casualty insurance maintained
pursuant to the management
agreements) as available under the
Terrorism Risk Insurance Act (as the
same may be amended or replaced) or
if such Act is no longer available
to the extent such coverage is
available at commercially reasonable
terms.
Embassy Suites - Lubbock, Raintree Borrower shall not be obligated to
Corporate Center 1 and 2 expend more than two times (the
"Terrorism Insurance Cap") the
amount of the then current Insurance
Premiums paid by such Borrower for
all of the insurance required to be
maintained by Section 7.1 of the
Loan Agreement (excluding any
coverage for acts of terrorism) for
terrorism insurance, provided,
however, if the cost of terrorism
insurance exceeds the Terrorism
Insurance Cap, such Borrower shall
purchase the maximum amount of
terrorism insurance available with
funds equal to the Terrorism
Insurance Cap.
Mall of Louisiana The Mall of Louisiana Mortgagor's
obligation to maintain terrorism
insurance is subject to such
insurance (a) being commercially
available and (b) can be obtained at
a communally reasonable cost.
Representation #12-Environmental Conditions
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Galileo NXL Retail Portfolio In the Mortgage Loan
4 documents, Mortgagors represent and
warrant that: (A) except as may be
disclosed in the environmental
reports provided to Lender, there
are no claims, liabilities,
investigations, litigation,
administrative proceedings, pending
or to the knowledge of the
Mortgagors, threatened, or judgments
or orders relating to any hazardous
materials (collectively,
"Environmental Claims") asserted or,
to the knowledge of the Mortgagors,
threatened against any Mortgagor or
relating to any Property and except
as disclosed in the environmental
reports delivered to Lender prior to
the closing of the Mortgage Loan, no
Mortgagor nor, to the knowledge of
the Mortgagors, any other Person has
caused or permitted any hazardous
materials to be used, generated,
reclaimed, transported, released,
treated, stored or disposed of in a
manner which could form the basis
for an Environmental Claim against
any Mortgagor or relating to any
Property; (B) except as disclosed in
the environmental reports delivered
to Lender prior to the closing of
the Mortgage Loan, except for
materials customarily used or stored
in connection with operation and
management of properties similar to
the Properties, which materials at
the Properties exist only in legal
quantities and are stored,
contained, transported, used,
released, and disposed of legally
and without violation of any
Environmental Laws, to the knowledge
of the Mortgagors, no hazardous
materials are or were stored or
otherwise located, and no
underground storage tanks or surface
impoundments are or were located, on
any Property or any other real
property currently or formerly
owned, leased or operated by any
Mortgagor, or to the knowledge of
the Mortgagors, on adjacent parcels
of real property, and no part of
such real property, or to the
knowledge of the Mortgagors, no part
of such adjacent parcels of real
property, including the groundwater
located therein or thereunder, is
presently contaminated by hazardous
materials; and (C) to the knowledge
of the Mortgagors, except as may be
set forth in the environmental
reports, the Mortgagors have been
and are currently in compliance in
all material respects with all
applicable Environmental Laws,
including obtaining and maintaining
in effect all material permits,
licenses or other authorizations
required by applicable Environmental
Laws.
"Environmental Laws" means any
Federal, state, or local law,
ordinance or regulation or any court
judgment or order of any Federal,
state or local agency or regulatory
body applicable to Mortgagor or to
any Property relating to industrial
hygiene or to environmental or
unsafe conditions including, but not
limited to, those relating to the
generation, manufacture, storage,
handling, transportation, disposal,
release, emission or discharge of
hazardous material, those in
connection with the construction,
fuel supply, power generation and
transmission, waste disposal or any
other operations or processes
relating to any Property, and those
relating to the atmosphere, soil,
surface and ground water, wetlands,
stream sediments and vegetation on,
under, in or about any Property.
"Environmental Laws" also shall
include, but not be limited to, the
Comprehensive Environmental
Response, Compensation and Liability
Act, the Hazardous Materials
Transportation Act, the Resource
Conservation and Recovery Act, the
Solid Waste Disposal Act, the Clean
Water Act, the Clean Air Act, the
Toxic Substance Control Act, the
Safe Drinking Water Act and the
Occupational Safety and Health Act,
and all regulations adopted in
respect to the foregoing laws.
The indemnity does not cover any
losses, liabilities, obligations,
claims, damages, penalties, causes
of action, fines and out-of-pocket
costs or expenses arising solely
from the gross negligence or
willful misconduct of the mortgagee.
The indemnity does not cover claims
to the extent occurring after the
date of transfer of title to the
related Mortgaged Property to any
indemnified party by foreclosure,
deed-in-lieu thereof, the exercise
of any power of sale or otherwise;
provided that the indemnitors can
prove that such claim did not arise
from any hazardous materials which
existed on, in, under or affecting
such Mortgaged Property prior to
transfer date.
Representation #14-Insurance
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Ashford Hotel Portfolio 7 With respect to four properties
comprising the Mortgaged Property,
the Mortgage Loan documents specify
that so long as Marriott
International, Inc. or any affiliate
thereof ("Marriott") is managing
the Mortgaged Property, the related
Mortgagors are participating in
Marriott's insurance programs in
accordance with the applicable
management agreements and no default
is continuing under any such
management agreement beyond
applicable notice and cure periods,
the insurance provisions set forth
in the Marriott management
agreements shall control and govern
any inconsistent provisions in the
Mortgage Loan documents. The
management agreements provide that
Marriott, in its discretion and
provided
certain other conditions
are satisfied, may maintain the
specified insurance on behalf of the
related Mortgagors.
Embassy Suites - Lubbock, Raintree Borrower shall not be obligated to
Corporate Center 1 and 2 expend more than two times (the
"Terrorism Insurance Cap") the
amount of the then current Insurance
Premiums paid by such Borrower for
all of the insurance required to be
maintained by Section 7.1 of the
Loan Agreement (excluding any
coverage for acts of terrorism) for
terrorism insurance, provided,
however, if the cost of terrorism
insurance exceeds the Terrorism
Insurance Cap, such Borrower shall
purchase the maximum amount of
terrorism insurance available with
funds equal to the Terrorism
Insurance Cap.
Galileo NXL Retail Portfolio 4 Other than with respect to D&O
Insurance, an insurance company
shall not be satisfactory unless
such insurance company (a) is
licensed or authorized to issue
insurance in the State where the
Property is located and (b) has a
claims paying ability rating by the
rating agencies of AA- (or its
equivalent). Notwithstanding the
foregoing, a carrier which does not
meet the foregoing ratings
requirement shall nevertheless be
deemed acceptable hereunder provided
that such carrier is reasonably
acceptable to Lender and the
Borrower shall obtain and deliver to
Lender a rating
confirmation with respect to such
carrier from each of the rating
agencies, provided, however, if any
required insurance coverage is
maintained by a syndicate of
insurers, the preceding ratings
requirements shall be deemed
satisfied (without any required
rating confirmation) as long as at
least seventy five percent (75%) of
the coverage (if there are four or
fewer members of the syndicate) or
at least sixty percent (60%) of the
coverage (if there are five or more
members of the syndicate) is
maintained with carriers meeting the
claims-paying ability ratings
requirements by S&P and ▇▇▇▇▇'▇ (if
applicable) set forth above and all
carriers in such syndicate have a
claims-paying ability rating by S&P
of not less than "BBB" and by
▇▇▇▇▇'▇ of not less than "Baa2" (to
the extent rated by ▇▇▇▇▇'▇).
Mall of Louisiana (a) With respect to flood insurance,
the coverage must equal the lesser
of (i) the outstanding amount of the
Mall of Louisiana Loan or (ii) the
maximum amount of flood insurance
available under the Federal flood
insurance program.
(b) Wind insurance is not required
under the Mall of Louisiana loan
documents. Note, however, the Mall
of Louisiana loan documents permit
Lender to require the Mall of
Louisiana Mortgagor to obtain
insurance coverage
for such insurable hazards that are
commonly insured against for
property similar to the Mall of
Louisiana Property located in or
around the region in which the Mall
of Louisiana Property is located.
(c) The Mall of Louisiana Mortgagor
is permitted to maintain (i)
commercial general liability
insurance through a syndicate of
insurers whereby at least 60% of the
coverage is with carriers having a
rating by S&P of not lower than
"BBB," and (ii) all-risk, business
income, builder's risk, boiler and
machinery and terrorism insurance
through a syndicate of insurers
through which at least 60% of the
coverage (if there are 4 or fewer
members of the syndicate) or at
least 50% of the coverage (if there
are 5 or more members of the
syndicate) is with carriers having a
rating by S&P of not lower than "A"
and the balance of the coverage is,
in each case, with carriers having a
rating by S&P of not lower than
"BBB", provided that the first-loss
risk is borne by the carriers having
a rating by S&P of not lower than
"A."
Tudor Plaza Rialto The Mortgage Loan Documents provide
that Walgreens & Co. may self-insure
with respect to the building and
improvements which comprise a
portion of the related Mortgage
Property occupied by Walgreens & Co.
provided certain conditions set
forth in the related mortgage are
met. At the time of the closing,
the related Borrower provided the
insurance with respect to the
Walgreens parcel.
Representation #18-Leasehold Estate
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------- ------------------------------------ ------------------------------------
Galileo NXL Retail Portfolio 4 The Mortgage Loan is secured in part
by Leasehold Mortgages at the Aurora
Plaza property and the Hornell Plaza
property.
As to representation 18(vii), the
ground lease at the Hornell Plaza
property expires on December 31,
2015 and the lessee does not have
any rights to renew or extend the
ground lease.
As to representation 18(xi), the
respective ground leases for the
Aurora Plaza and Hornell Plaza
properties are silent as to
amendments in all respects; however,
the Loan Agreement provides that no
Borrower shall modify, amend,
terminate, or surrender any ground
lease, in each case without the
prior written consent of Lender,
which consent may be withheld by
Lender in its reasonable discretion
and any attempted or purported
modification, amendment, surrender
or termination of any ground lease
without Lender's prior written
consent shall be null and void and
of no force or effect.
Representation #23-Other Mortgage Liens
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------- ------------------------------------ ------------------------------------
Capitol Hill Project The Mortgage Loan that will be
included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Mall of Louisiana The Mortgage Loan that will be
included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Although the Mall of Lousiana loan
documents do not specifically
itemize rating agency fees, the Mall
of Louisiana Mortgagor is required
to pay all of the out of pocket
costs and expenses of the lender
reasonably incurred in connection
with a transfer.
Representation #26-Licenses and Permits
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------- ------------------------------------ ------------------------------------
Hampton Inn - Herald Square The related Mortgagor is obligated
to continuously maintain the
temporary certificate of occupancy
with respect to the related
Mortgaged Property. The related
Mortgagor is also obligated to
obtain and deliver to lender the
permanent certificate of occupancy.
Raintree Corporate Center 1 and 2 All available Certificates of
Occupancy were provided,
however, the zoning report state
that "per the City of Scottsdale, a
lack of a Certificate of Occupancy
is not considered a violation".
Representation #28-Releases of Mortgaged Properties
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------- ------------------------------------ ------------------------------------
Galileo NXL Retail Portfolio 4 Parcel releases are permitted upon
the satisfaction of certain
conditions specified in the loan
documents.
Metro Retail Portfolio The loan agreement permits the
release of a parcel of land at the
County Line Property (the "County
Line Out-Parcel") for no
consideration provided the following
conditions are satisfied:
(a) No Event of Default has occurred
and is continuing;
(b) Borrower shall deliver to Lender
at least thirty (30) days but no
more than ninety (90) days prior
written notice of its request to
obtain a release of the County Line
Out-Parcel;
(c) Borrower shall submit to Lender
a release of lien for the Out-Parcel
for execution by Lender. Such
release shall be in a form
appropriate in the State of Oklahoma
and that contains standard
provisions, if any, protecting the
rights of the releasing lender. In
addition, Borrower shall provide all
other documentation Lender
reasonably requires to be delivered
by Borrower in connection with such
release,
together with a certificate from an
authorized officer certifying that
such documentation (i) is in
compliance with all applicable laws
and (ii) will not impair or
otherwise adversely affect the lien,
security interest and other rights
of Lender under the Security
Instrument or the other Loan
Documents;
(d) Borrower shall deliver to Lender
evidence which would be satisfactory
to a prudent institutional
commercial mortgage lender that,
after immediately after giving
effect to the Out-Parcel Release,
the County Line Property, as
remaining (the "Remaining County
Line Parcel") shall (i) comply in
all respects with all applicable
Legal Requirements, including,
without limitation, all applicable
zoning and building laws and
regulations, (ii) constitute one or
more separate tax lots and (iii) be
properly subdivided;
(e) Borrower shall provide Lender
with an endorsement to Lender's
title insurance policy insuring the
priority of the lien of the Security
Instrument is unaffected as to the
Remaining County Line Parcel;
(f) In the event a Securitization
has occurred, Lender shall have
received a legal opinion reasonably
satisfactory to Lender stating,
among other things, that the
tax qualification and status of the
REMIC will not be adversely affected
or impaired as a result of the
Out-Parcel Release;
(g) In the event a Securitization
has occurred, Lender shall have
received a Ratings Confirmation with
respect to such Out-Parcel Release;
(h) Borrower shall deliver such
other documents, instruments or
opinions reasonably required by
Lender;
(i) Lender shall have received
payment of all Lender's costs and
expenses, including due diligence
review costs and reasonable counsel
fees and disbursements incurred in
connection with the release of the
County Line Out-Parcel from the lien
of the related Security Instrument
and the review and approval of the
documents and information required
to be delivered in connection
therewith; and
(j) The County Line Out-Parcel was
not used in determining the
appraised value of the County Line
Property.
Representation #29- Defeasance
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
100 West Long Lake With respect to Occupancy Reserve
Letter of Credit, in event that
certain conditions of occupancy
related to release of
the Occupancy Reserve Letter of
Credit are not satisfied by the date
which is the eighteen month
anniversary of the Closing Date,
Lender has right, at its option, to
hold the Occupancy Reserve Letter of
Credit (or any cash deposited in
lieu thereof) as additional security
or draw down on the Occupancy
Reserve Letter of Credit and apply
the proceeds as a partial prepayment
of the Loan subject to partial
defeasance provisions of the Loan
Documents.
Representation #30- Defeasance and Assumption Costs
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Galileo NXL Retail Portfolio 4 The transfer provisions of the
Mortgage Loan documents do not
explicitly provide for the payment
of Lender's fees relating to
transfers. However, the Mortgage
Loan documents provide that whether
or not the transactions contemplated
thereby shall be consummated, except
as otherwise expressly provided in
Article X to the loan agreement for
the Mortgage Loan, the Mortgagors
shall be liable for and agrees to
promptly pay all reasonable fees,
costs and expenses incurred by
Lender in connection with any
matters contemplated by or arising
out of the loan agreement, including
the following, and all such fees,
costs and expenses shall be part of
the Obligations, payable on demand:
(A) reasonable fees, costs and
expenses (including reasonable
attorneys' fees, and reasonable
fees of other professionals retained
by Lender) incurred in connection
with the examination, review, due
diligence investigation,
documentation and closing of the
financing arrangements evidenced by
the Mortgage Loan documents; (B)
reasonable fees, costs and expenses
(including reasonable attorneys'
fees and fees of other professionals
retained by Lender) incurred in
connection with the administration
of the Mortgage Loan documents and
the Mortgage Loan and any
amendments, modifications and
waivers relating thereto; (C)
reasonable fees, costs and expenses
(including reasonable attorneys'
fees) incurred in connection with
the review, documentation,
negotiation, closing and
administration of any subordination
or intercreditor agreements; and (D)
reasonable fees, costs and expenses
(including attorneys' fees and fees
of other professionals retained by
Lender) incurred in any action to
enforce or interpret the Mortgage
Loan documents or to collect any
payments due from any Mortgagor
under the Mortgage Loan documents or
incurred in connection with any
refinancing or restructuring of the
credit arrangements provided under
the Mortgage Loan documents, whether
in the nature of a "workout" or in
connection with any insolvency or
bankruptcy proceedings or
otherwise."
Mall of Louisiana Although Mall of Louisiana loan
documents do not specifically
itemize Rating Agency fees, the Mall
of Louisiana Mortgagor is required
to pay all of the out-of-pocket
costs and expenses of Lender
reasonably incurred in connection
with a defeasance.
Representation #32-Inspection
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Galileo NXL Retail Portfolio 4 The following are the site
inspection dates for each of the
following properties:
▇▇▇▇▇▇▇ ▇▇▇▇▇- ▇/▇/▇▇▇▇
▇▇▇▇▇▇ Grove- 4/12/2005
Market Street Square- 4/17/2005
Glendale Galleria- 4/20/2005
Beltway South- 4/13/2005
▇▇▇▇▇ Shores- 4/10/2005
Inwood Forest- 3/31/2005
Remount Village- 4/11/2005
Riverwood Port- 4/7/2005
Napolean Center- 4/8/2005
Representation #34-Due-on-Sale
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
4th and Walnut 99% of the interests in the mortgage
borrower have been pledged to
Tri-State Improvement Company, an
Ohio corporation, the seller of the
property, as security for a
mezzanine loan in the original
principal amount of $4,875,000. The
mezzanine borrowers are ▇▇ ▇▇▇▇▇
Leasing, LLC, July Third
Investments, LLC and JABMS, LLC,
owners of interests in the mortgage
borrower. The mezzanine lender
entered into an intercreditor with
the mortgage lender based upon the
standard CMSA form.
100 West Long Lake The Mortgage Loan Documents permit
Mortgagor to obtain future mezzanine
debt subject to the satisfaction of
certain terms and conditions as set
forth in the Mortgage Loan
Documents.
Ashford Hotel Portfolio 7 Transfers of less than 49% of the
equity interests in Mortgagor are
permitted. Provided that no event of
default has occurred and is
continuing, transfers of more than
49% of the equity interests in
Mortgagor are permitted upon
satisfaction of certain specified
conditions and so long as (a) prior
to any secondary market transaction,
lender shall have consented to such
transfer, such consent not to be
unreasonably withheld or delayed,
and (b) after any secondary market
transaction, Mortgagor shall have
delivered (or shall have caused to
be delivered) to lender written
confirmation from each of the rating
agencies rating any securities
issued in connection with a
secondary market transaction that
such transfer will not result in a
downgrade, withdrawal or
qualification of any such
securities.
Provided that no event of default
has occurred and is continuing, the
sale of all (but not fewer than all)
of the
Mortgaged Properties to another
party shall be permitted upon
satisfaction of certain specified
conditions and so long as (a) prior
to any secondary market transaction,
lender shall have consented to such
transfer, such consent not to be
unreasonably withheld or delayed,
and (b) after any secondary market
transaction, Mortgagor shall have
delivered (or shall have caused to
be delivered) to lender written
confirmation from each of the rating
agencies rating any securities
issued in connection with a
secondary market transaction that
such transfer will not result in a
downgrade, withdrawal or
qualification of any such
securities.
Galileo NXL Retail Portfolio 4 The Mortgage Loan documents permit,
without the consent of the holder of
the Mortgage, other transfers and
sales of all or any portion of the
Mortgaged Property and of interests
in any or all of the related
Mortgagors upon satisfaction of
certain conditions set forth in the
Mortgage Loan documents.
Mall of Louisiana Provided that the conditions
contained in the Mall of Louisiana
loan documents are satisfied, (a)
transfers of the Mall of Louisiana
Property and equity interests the
Mall of Louisiana Mortgagor are
permitted, (b) certain affiliates of
the Mall of Louisiana Mortgagor are
permitted to pledge their direct and
indirect interests in the Mall of
Louisiana Mortgagor to each other
or to a Qualified Pledgee (as
defined in the Mall of Louisiana
loan documents), and (c) a new
mezzanine loan may be obtained
provided that the existing mezzanine
loan has been paid in full.
Representation #36- Whole Loan
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
Representation #39-Security Interests
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Capitol Hill Project, Mall of The Mortgage Loan that will be
Louisiana included in the trust is a senior
loan in a multiple loan structure
comprised of two mortgage loans,
each of which (whether or not
included in the trust) is secured by
the same mortgage instrument and is
cross-defaulted with the other.
The security interests created by
the related UCC financing statement
are for the benefit of the holder of
the Mortgage Loan that will be
included in the trust and the
holders of the mortgage loans that
will not be included in the trust.
Representation #43-Recourse
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Ashford Hotel Portfolio 7 Limitations on recourse against
Mortgagor contained in the Mortgage
Loan
documents shall not (a) impair the
right of lender to bring suit for
and recover against any person any
damages, losses, expenses,
liabilities or costs resulting from
fraud, willful misrepresentation,
waste of all or any portion of any
Mortgaged Property, or wrongful
removal or disposal of all or any
portion of any Mortgaged Property by
any person in connection with the
Mortgage Loan documents, (b) impair
the right of lender to bring suit
for and recover against any person
with respect to any misappropriation
of security deposits or rents
collected more than one (1) month in
advance and (c) impair the right of
lender to obtain insurance proceeds
or condemnation proceeds due to
lender pursuant to the Mortgage Loan
documents.
Capitol Hill Project The Loan is full recourse to the
related Mortgagor and the guarantors
unless and until the related
Mortgagor, within thirty (30) days
of the closing date, satisfied
certain conditions in the related
loan documents with respect to
adding additional members of the
related Mortgagor and additional
guarantors.
Yardville National Bank The related Mortgage Documents do
not provide for losses on account of
the missapropriation of tenant
security deposits. The related
Mortgaged Property is occupied by a
single-tenant and such lease does
not
provide for a tenant security
deposit.
Representation #47- Operating Statements
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Mall of Louisiana The Mall of Louisiana Mortgagor is
obligated to deliver rent rolls
annually unless a Trigger Event (as
defined in the Mall of Louisiana
loan documents) occurs and is
continuing, in which case the Mall
of Louisiana Mortgagor is obligated
to deliver the rent rolls quarterly.
Representation #51- Servicing
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------
Mall of Louisiana The Mall of Louisiana loan documents
provide that the primary servicer
will be (i) Midland Loan Services,
(ii) Wachovia Securities, or (iii)
such other servicer as consented to
by Borrower, which consent will not
be unreasonably withheld.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
NONE.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
NONE.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
▇▇▇▇ ▇▇▇▇-▇▇: MORTGAGE LOAN SCHEDULE
LOAN
GROUP PROPERTY
LOAN # 1 OR 2 PROPERTY NAME ORIGINATOR TYPE
------ ------ ------------- ---------- --------
2 1 Mall of Louisiana MLML Retail
4 1 Galileo NXL Retail Portfolio 4 MLML Retail
4.01 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Retail
4.02 1 Orange Grove MLML Retail
4.03 ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Retail
4.04 1 Glendale Galleria MLML Retail
4.05 1 Aurora Plaza MLML Retail
4.06 1 Beltway South MLML Retail
4.07 1 ▇▇▇▇▇ Shores MLML Retail
4.08 1 Inwood Forest MLML Retail
4.09 1 Remount Village MLML Retail
4.10 ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Retail
4.11 1 Napoleon Center MLML Retail
4.12 1 Johnstown Galleria Outparcel MLML Retail
6 1 Ashford Hotel Portfolio 7 MLML Hospitality
6.01 1 Residence Inn Fairfax MLML Hospitality
6.02 1 Residence Inn Sorrento Mesa MLML Hospitality
6.03 1 Courtyard Irvine Spectrum MLML Hospitality
6.04 1 Embassy Suites Houston MLML Hospitality
6.05 1 Courtyard Alpharetta MLML Hospitality
7 1 Raintree Corporate Center 1 and 2 MLML ▇▇▇▇▇▇
▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MLML Retail
10 1 Four Points Sheraton - Chelsea MLML Hospitality
17 1 University Park MLML Mixed Use
20 1 Hampton Inn - Herald Square MLML Hospitality
21 1 University Place MLML ▇▇▇▇▇▇
▇▇ ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
24 1 University Park Plaza I MLML Retail
26 1 South Point Plaza MLML Retail
39 1 Phoenix Industrial Portfolio MLML Industrial
39.01 1 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Industrial
39.02 1 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Industrial
42 1 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Mixed Use
46 1 Embassy Suites-Lubbock MLML Hospitality
48 1 Lantern Plaza MLML Retail
53 2 Avalon at Northbrook MLML Multifamily
63 1 Sam's Club Port Huron MLML Retail
66 2 Montego Bay Apartments MLML Multifamily
69 1 Hampton Inn - ▇▇▇▇▇▇▇▇▇ MLML Hospitality
71 2 The Pines at Camelback MLML Multifamily
76 1 Tudor Plaza Rialto MLML Retail
79 1 Holiday Inn Chicago MLML Hospitality
80 1 Centerpointe at Natomas MLML Mixed Use
84 1 Metro Retail/RDR Portfolio MLML Various
84.01 1 County Line MLML Retail
84.02 1 Metro Park MLML Industrial
84.03 1 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MLML Retail
84.04 1 Equity Bank MLML Retail
84.05 1 ▇▇▇▇▇▇▇▇ Commons MLML Retail
99 2 Stonington Road Apartments MLML Multifamily
100 1 Capitol Hill Project MLML Mixed Use
108 1 Veranda Park MLML Retail
109 1 University Shoppes MLML Retail
115 1 Clearwater Office Center MLML Office
116 1 Lifetime Fitness ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at the Airport MLML ▇▇▇▇▇▇
▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
125 1 BJ's Warehouse at Janaf MLML Retail
130 1 Quality Suites Baton Rouge MLML Hospitality
140 1 Flamingo Plaza MLML Retail
142 1 Shoppes at Andover MLML Retail
146 1 Indore Retail Center MLML Retail
152 1 Southampton Office Park MLML Office
156 2 Pinewood Park Apartments MLML Multifamily
161 1 Homewood Suites Houston Intercontinental MLML Hospitality
171 1 Outback Self Storage MLML Self Storage
173 2 Scenic Place MLML Multifamily
197 1 Yardville ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ # ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------ -------------- ---- ------ -----
2 6401 Bluebonnet Boulevard Baton Rouge East Baton Rouge LA
4 Various Various Various Various
4.01 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
4.02 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4.03 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
4.04 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
4.05 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and East 6th Avenue Aurora Arapahoe CO
4.06 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4.07 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇
4.08 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
4.09 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
4.10 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Volusia FL
4.11 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
4.12 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
6 Various Various Various Various
6.01 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
6.02 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
6.03 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
6.04 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
6.05 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
7 15111 & ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
8 6501-6887 & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
10 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
17 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
20 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
21 3260 & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
22 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
24 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
26 10011 - ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
39 Various Various Maricopa AZ
39.01 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
39.02 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
42 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
46 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
48 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
53 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ IN
63 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
66 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
69 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
71 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
76 NEC of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
79 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
80 ▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
84 Various Various Various Various
84.01 ▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
84.02 5616 & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
84.03 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
84.04 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
84.05 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
99 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ CT
100 810 - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇
108 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
109 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
115 801 South ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
116 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
121 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
122 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
125 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
130 9138 Bluebonnet Centre Boulevard Baton Rouge East Baton Rouge LA
140 6620 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
142 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
146 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
152 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
156 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
161 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
171 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
173 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
197 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST PRIMARY
LOAN # ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE % SERVICING FEE
------ -------- ------------ ----------- ---------------- --------------- -------- -------------
2 70836 120,000,000 120,000,000 678,211.19 8,138,534.28 5.4411 0.0100
4 Various 102,000,000 102,000,000 5.1291 0.0100
4.01 14843 17,038,455 17,038,455
4.02 77034 14,198,712 14,198,712
4.03 17022 11,713,938 11,713,938
4.04 85302 11,216,983 11,216,983
4.05 80010 9,087,176 9,087,176
4.06 77089 8,519,227 8,519,227
4.07 33905 8,519,227 8,519,227
4.08 77088 6,318,427 6,318,427
4.09 29406 4,188,620 4,188,620
4.10 32127 4,082,130 4,082,130
4.11 43545 3,709,414 3,709,414
4.12 15904 3,407,691 3,407,691
6 Various 83,075,000 83,075,000 511,672.42 6,140,069.04 5.5097 0.0100
6.01 22042 23,608,445 23,608,445
6.02 92121 21,158,512 21,158,512
6.03 92610 14,105,675 14,105,675
6.04 77056 13,511,752 13,511,752
6.05 30004 10,690,617 10,690,617
7 85260 58,958,157 59,000,000 334,630.83 4,015,569.96 5.9341 0.0100
8 77084 53,500,000 53,500,000 309,464.03 3,713,568.36 5.6481 0.0100
10 10001 39,813,399 40,000,000 252,271.41 3,027,256.92 5.7551 0.0100
17 32792 30,000,000 30,000,000 185,007.93 2,220,095.16 6.2441 0.0100
20 10001 26,500,000 26,500,000 172,119.42 2,065,433.04 6.0641 0.0100
21 32792 25,000,000 25,000,000 150,370.16 1,804,441.92 6.0091 0.0100
22 45202 24,977,835 25,000,000 159,664.70 1,915,976.40 6.5791 0.0100
24 32792 23,000,000 23,000,000 138,266.52 1,659,198.24 6.0041 0.0100
26 98204 21,920,000 21,920,000 127,376.61 1,528,519.32 5.6901 0.0100
39 Various 15,431,341 15,500,000 97,471.59 1,169,659.08 6.4301 0.0100
39.01 85353 8,894,991 8,934,568
39.02 85210 6,536,350 6,565,432
42 90015 15,084,948 15,100,000 90,464.18 1,085,570.16 5.9721 0.0100
46 79424 14,000,000 14,000,000 92,405.64 1,108,867.68 6.2351 0.0100
48 02760 13,580,000 13,580,000 80,200.69 962,408.28 5.8391 0.0100
53 46825 12,734,657 12,760,000 73,453.76 881,445.12 5.6041 0.0100
63 48060 11,200,000 11,200,000 64,955.17 779,462.04 5.6721 0.0100
66 85635 10,500,000 10,500,000 60,212.10 722,545.20 5.5291
69 21704 10,110,668 10,125,000 66,011.35 792,136.20 6.1041 0.0100
71 85015 10,040,000 10,040,000 58,361.31 700,335.72 5.6931 0.0100
76 92376 9,389,998 9,400,000 54,260.16 651,121.92 5.6291 0.0100
79 60607 8,966,185 9,020,000 57,193.21 686,318.52 5.8111 0.0100
80 95834 8,500,000 8,500,000 50,438.36 605,260.32 5.8831 0.0100
84 Various 8,385,086 8,400,000 51,071.88 612,862.56 6.0201
84.01 74012 3,443,875 3,540,000
84.02 74146 1,834,238 1,920,000
84.03 67226 1,310,170 1,400,000
84.04 67002 1,066,853 990,000
84.05 27545 729,952 550,000
99 06360 7,100,000 7,100,000 42,398.45 508,781.40 6.2291 0.0100
100 20003 7,040,000 7,040,000 43,346.49 520,157.88 6.2291 0.0100
108 32835 6,000,000 6,000,000 36,249.26 434,991.12 6.4791 0.0100
109 45324 6,000,000 6,000,000 36,359.69 436,316.28 6.0791 0.0100
115 84101 5,550,000 5,550,000 33,761.87 405,142.44 6.1151 0.0100
116 55125 5,550,000 5,550,000 36,459.55 437,514.60 6.8541 0.0100
121 02866 5,239,820 5,250,000 30,587.57 367,050.84 5.7141 0.0100
122 48304 5,000,000 5,000,000 29,267.64 351,211.68 5.6871
125 23502 4,988,916 5,000,000 35,238.47 422,861.64 5.6861
130 70809 4,700,000 4,700,000 33,693.84 404,326.08 7.1371 0.0100
140 89103 4,375,000 4,375,000 26,399.34 316,792.08 6.0391 0.0100
142 32825 4,255,276 4,260,000 24,003.71 288,044.52 5.4101 0.0100
146 80127 4,130,000 4,130,000 25,499.00 305,988.00 6.2551 0.0100
152 18966 3,850,000 3,850,000 22,589.99 271,079.88 5.6891
156 65738 3,725,000 3,725,000 21,880.28 262,563.36 5.7891 0.0100
161 77032 3,544,975 3,550,000 23,144.72 277,736.64 6.1041 0.0100
171 39402 3,070,563 3,075,000 19,812.27 237,747.24 5.9791 0.0100
173 65807 3,007,004 3,010,000 18,046.47 216,557.64 5.9791 0.0100
197 08854 2,097,004 2,100,000 13,626.77 163,521.24 6.0541 0.0100
NET MONTHLY
MASTER TRUSTEE AND SUB SERVICIN ADMIN. MORTGAGE PAYMENT
LOAN # SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE % ACCRUAL TYPE TERM DATE
------ ------------- ---------------- ------------ ------ -------- ------------ ---- -------
2 0.0100 0.0009 0.0209 5.4411 Actual/360 60 1
4 0.0100 0.0009 0.0209 5.1291 Actual/360 84 1
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
6 0.0100 0.0009 0.0209 5.5097 Actual/360 123 1
6.01
6.02
6.03
6.04
6.05
7 0.0100 0.0009 0.0209 5.9341 Actual/360 120 1
8 0.0100 0.0009 0.0209 5.6481 Actual/360 120 1
10 0.0100 0.0009 0.0209 5.7551 Actual/360 120 1
17 0.0100 0.0009 0.0209 6.2441 Actual/360 120 1
20 0.0100 0.0009 0.0209 6.0641 Actual/360 120 1
21 0.0100 0.0009 0.0209 6.0091 Actual/360 120 1
22 0.0100 0.0009 0.0209 6.5791 Actual/360 84 1
24 0.0100 0.0009 0.0209 6.0041 Actual/360 120 1
26 0.0100 0.0009 0.0209 5.6901 Actual/360 120 1
39 0.0100 0.0009 0.0209 6.4301 Actual/360 120 1
39.01
39.02
42 0.0100 0.0009 0.0209 5.9721 Actual/360 120 1
46 0.0100 0.0009 0.0209 6.2351 Actual/360 120 1
48 0.0100 0.0009 0.0209 5.8391 Actual/360 120 1
53 0.0100 0.0009 0.0209 5.6041 Actual/360 120 1
63 0.0100 0.0009 0.0209 5.6721 Actual/360 120 1
66 0.0100 0.0009 0.0500 0.0609 5.5291 Actual/360 120 1
69 0.0100 0.0009 0.0209 6.1041 Actual/360 120 1
71 0.0100 0.0009 0.0209 5.6931 Actual/360 120 1
76 0.0100 0.0009 0.0209 5.6291 Actual/360 120 1
79 0.0100 0.0009 0.0209 5.8111 Actual/360 120 1
80 0.0100 0.0009 0.0209 5.8831 Actual/360 120 1
84 0.0100 0.0009 0.1000 0.1109 6.0201 Actual/360 120 1
84.01
84.02
84.03
84.04
84.05
99 0.0100 0.0009 0.0209 6.2291 Actual/360 120 1
100 0.0100 0.0009 0.0209 6.2291 Actual/360 120 1
108 0.0100 0.0009 0.0209 6.4791 Actual/360 120 1
109 0.0100 0.0009 0.0209 6.0791 Actual/360 120 1
115 0.0100 0.0009 0.0209 6.1151 Actual/360 120 1
116 0.0100 0.0009 0.0209 6.8541 Actual/360 120 1
121 0.0100 0.0009 0.0209 5.7141 Actual/360 120 1
122 0.0100 0.0009 0.0800 0.0909 5.6871 Actual/360 120 1
125 0.0100 0.0009 0.1000 0.1109 5.6861 Actual/360 120 1
130 0.0100 0.0009 0.0209 7.1371 Actual/360 120 1
140 0.0100 0.0009 0.0209 6.0391 Actual/360 120 1
142 0.0100 0.0009 0.0209 5.4101 Actual/360 120 1
146 0.0100 0.0009 0.0209 6.2551 Actual/360 120 1
152 0.0100 0.0009 0.1000 0.1109 5.6891 Actual/360 120 1
156 0.0100 0.0009 0.0209 5.7891 Actual/360 120 1
161 0.0100 0.0009 0.0209 6.1041 Actual/360 120 1
171 0.0100 0.0009 0.0209 5.9791 Actual/360 120 1
173 0.0100 0.0009 0.0209 5.9791 Actual/360 120 1
197 0.0100 0.0009 0.0209 6.0541 Actual/360 120 1
MATURITY/ AMORT
LOAN # REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN
------ --------- --------- ----- ---------- ---------- --------
2 59 4/1/2011 360 360 Fee No
4 76 8/31/2012 0 0 Fee/Leasehold No
4.01 Leasehold
4.02 Fee
4.03 Fee
4.04 Fee
4.05 Leasehold
4.06 Fee
4.07 Fee
4.08 Fee
4.09 Fee
4.10 Fee
4.11 Fee
4.12 Fee
6 117 2/1/2016 300 300 Fee No
6.01 Fee
6.02 Fee
6.03 Fee
6.04 Fee
6.05 Fee
7 119 4/1/2016 420 419 Fee No
8 119 4/1/2016 360 360 Fee No
10 117 2/1/2016 300 297 Fee No
17 120 5/1/2016 360 360 Fee No
20 120 5/1/2016 300 300 Fee No
21 120 5/1/2016 360 360 Fee No
22 83 4/1/2013 360 359 Fee Yes
24 120 5/1/2016 360 360 Fee No
26 119 4/1/2016 360 360 Fee No
39 115 12/1/2015 360 355 Fee/Leasehold No
39.01 Fee
39.02 Leasehold
42 119 4/1/2016 360 359 Fee No
46 120 5/1/2016 300 300 Fee No
48 120 5/1/2016 360 360 Fee No
53 118 3/1/2016 360 358 Fee No
63 120 5/1/2016 360 360 Fee No
66 119 4/1/2016 360 360 Fee No
69 119 4/1/2016 300 299 Fee No
71 118 3/1/2016 360 360 Fee No
76 119 4/1/2016 360 359 Fee No
79 116 1/1/2016 300 296 Fee No
80 120 5/1/2016 360 360 Fee No
84 118 3/1/2016 360 358 Fee No
84.01 Fee
84.02 Fee
84.03 Fee
84.04 Fee
84.05 Fee
99 120 5/1/2016 396 396 Fee No
100 118 3/1/2016 360 360 Fee No
108 120 5/1/2016 420 420 Fee No
109 120 5/1/2016 360 360 Fee No
115 120 5/1/2016 360 360 Fee No
116 120 5/1/2016 360 360 Fee No
121 118 3/1/2016 360 358 Fee No
122 119 4/1/2016 360 360 Fee No
125 119 4/1/2016 240 239 Leasehold No
130 120 5/1/2016 300 300 Fee No
140 120 5/1/2016 360 360 Fee No
142 119 4/1/2016 360 359 Fee No
146 120 5/1/2016 360 360 Fee No
152 118 3/1/2016 360 360 Fee No
156 119 4/1/2016 360 360 Fee No
161 119 4/1/2016 300 299 Fee No
171 119 4/1/2016 300 299 Fee No
173 119 4/1/2016 360 359 Fee No
197 119 4/1/2016 300 299 Fee No
ARD ENVIRONMENTAL
LOAN # STEP UP INSURANCE
------ ------- -------------
2 No
4 Yes
4.01 Yes
4.02 Yes
4.03 Yes
4.04 Yes
4.05 Yes
4.06 Yes
4.07 Yes
4.08 Yes
4.09 Yes
4.10 Yes
4.11 Yes
4.12 Yes
6 No
6.01 No
6.02 No
6.03 No
6.04 No
6.05 ▇▇
▇ ▇▇
▇ ▇▇
▇▇ ▇▇
▇▇ ▇▇
20 No
21 No
22 2.0% plus the greater of (i) Initial Interest Rate and (ii) the sum of the Treasury Rate aand 5.0% No
24 No
26 No
39 No
39.01 No
39.02 ▇▇
▇▇ ▇▇
▇▇ ▇▇
▇▇ ▇▇
▇▇ ▇▇
63 No
66 No
69 No
71 ▇▇
▇▇ ▇▇
▇▇ ▇▇
▇▇ ▇▇
▇▇ ▇▇
84.01 No
84.02 No
84.03 No
84.04 No
84.05 ▇▇
▇▇ ▇▇
▇▇▇ ▇▇
▇▇▇ ▇▇
▇▇▇ ▇▇
115 No
116 No
121 No
122 No
125 No
130 No
140 No
142 No
146 No
152 No
156 ▇▇
▇▇▇ ▇▇
▇▇▇ ▇▇
▇▇▇ ▇▇
▇▇▇ ▇▇
PARTIAL UPFRONT
CROSS CROSS DEFEASANCE DEFEASANCE LETTER OF LOCKBOX IN HOLDBACK ENGINEERING
LOAN # DEFAULTED COLLATERALIZED ALLOWED ALLOWED CREDIT PLACE AMOUNT RESERVE ($)
------ --------- -------------- ---------- ---------- --------- ---------- -------- -----------
2 No Yes No Yes
4 Yes Yes No Yes 96,813
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
6 Yes Yes No Yes
6.01
6.02
6.03
6.04
6.05
7 No Yes No Yes
8 No Yes No No 49,375
10 No Yes No Yes
17 No Yes No Yes
20 No Yes No Yes
21 No Yes No Yes
22 No Yes No Yes
24 No Yes No Yes
26 No Yes No Yes 28,600
39 Yes Yes No Yes
39.01
39.02
42 No Yes No No
46 No Yes No Yes
48 No Yes No Yes
53 No Yes No No
63 No Yes No Yes
66 No Yes No No 18,050
69 No Yes No Yes 912,606
71 No Yes No No 18,438
76 Yes Yes No No
79 No Yes No Yes 18,125
80 No Yes No No 300,000
84 No Yes Yes No
84.01
84.02
84.03
84.04
84.05
99 No Yes No No
100 No Yes No Yes
108 No Yes No No
109 No Yes No No 226,471
115 No Yes No No
116 No Yes No Yes
121 No No No No
122 No Yes Yes No 67,450
125 No Yes Yes Yes
130 No Yes No Yes 34,000
140 No Yes No No
142 No Yes No No
146 No Yes No No
152 No Yes No No
156 No Yes No No
161 No Yes No No
171 No Yes No No
173 No Yes No No
197 No Yes No Yes
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT MONTHLY
CAPEX ENVIR. TI/LC RE TAX INS. OTHER CAPEX
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
------ ----------- ----------- ----------- ----------- ----------- ----------- -----------
2
4 57,623 1,286,450 179,969 1,667 19,018
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
6 619 380,100 62,655 18,990
6.01
6.02
6.03
6.04
6.05
7 67,900 12,208 6,226
8 250,000 315,140 4,239
10 99,403 46,594 35,320
17
20 195,284 35,320
21
22 190,331 18,416 7,896
24
26 164,000 100,822 5,850 2,380
39 6,698 127,065 2,642
39.01
39.02
42 22,422 1,213
46 45,332 18,286
48 50,000 80,201
53 101,935 4,800
63 303
66 144,000 5,438
69 26,504 180,736 14,175
71 52,953 23,458 5,151
76 18,750 326
79 60,986 119,520 78,723 20,793
80 5,316 13,513 460
84 45,123 18,988
84.01
84.02
84.03
84.04
84.05
99 37,013 38,147 1,313
100 150,000 471
108 22,728 30,294
109 150,000 4,876 7,130 833
115 100,000 43,868 5,775 124,518 734
116 36,460
121 150,000 648
122 49,663 549
125 13,677 42,077
130 69,077 23,017 36,749 8,230
140 75,000 623 397
142 10,507 3,575 361,575 180
146 250,000 2,375 1,915 201
152 88,000 38,338 6,099 704
156 11,909 6,213 2,021
161 37,223 27,617 5,148
171 18,644 5,321 656
173 14,414 3,084 1,688
197 1,053 3,037
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX TI/LC TI/LC RE TAX INS. OTHER GRACE
LOAN # RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($) PERIOD
------ --------------- ----------- --------------- ----------- ----------- ----------- ------
2 95,838 0
4 171,352 25,710 833 0
4.01
4.02
4.03
4.04
4.05
4.06
4.07
4.08
4.09
4.10
4.11
4.12
6 33,259 5,220 0
6.01
6.02
6.03
6.04
6.05
7 225,000 25,000 67,900 12,208 5
8 4,167 105,047 5
10 49,701 7,759 5
17 5
20 39,057 5
21 5
22 24,575 63,444 4,604 5
24 5
26 2,500 16,804 2,925 5
39 20,253 6,698 5
39.01
39.02
42 11,147 1,962 5
46 800,000 11,333 5
48 50,000 5
53 20,387 5,963 5
63 303 5
66 4,398 2,719 5
69 6,626 3,556 5
71 10,780 3,910 5
76 5,831 1,042 5
79 23,904 7,157 5
80 3,450 5,316 1,351 5
84 10,344 2,713 5
84.01
84.02
84.03
84.04
84.05
99 9,253 3,338 5
100 3,221 2,147 1,098 5
108 992 3,788 2,524 5
109 4,876 1,019 5
115 35,000 7,311 825 5
116 5
121 3,848 5
122 2,750 7,318 599 5
125 6,838 5
130 4,603 5,250 5
140 40,000 2,522 623 5
142 1,871 2,101 894 5
146 7,500 2,375 958 5
152 3,750 5,452 1,525 5
156 2,977 1,553 5
161 9,306 2,511 5
171 10,000 4,661 1,330 5
173 2,402 1,542 5
197 351 337 5