Exhibit 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
March 1, 2007, between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), and
Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of March 1, 2007, between the Purchaser, as
depositor, Xxxxx Fargo Bank, N.A., as General Master Servicer, LNR Partners,
Inc., as General Special Servicer, NCB, FSB, as NCB Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer and U.S. Bank National
Association, as Trustee, Paying Agent and Certificate Registrar. In exchange for
the Mortgage Loans and certain other mortgage loans (the "Other Mortgage Loans")
to be purchased by the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB, Class
A-4, Class A-M and Class A-J Certificates (the "Public Certificates") will be
sold by the Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, Banc of America
Securities LLC, Natixis Securities North America Inc. (formerly IXIS Securities
North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
SunTrust Capital Markets, Inc. (collectively, the "Underwriters"), pursuant to
an Underwriting Agreement, between the Purchaser and the Underwriters, dated
March 22, 2007 (the "Underwriting Agreement"), and the Class X, Class X-Y, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class EI, Class R-I, Class R-II and Class
R-III Certificates (collectively, the "Private Certificates") will be sold by
the Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated (in such capacity, the
"Initial Purchaser") pursuant to a Certificate Purchase Agreement, between the
Purchaser and the Initial Purchaser, dated March 22, 2007 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated February 6, 2007, as supplemented
by a Prospectus Supplement dated March 22, 2007 (together, the "Prospectus
Supplement"), and the Initial Purchaser will offer the Private Certificates
(other than the Class EI, Class R-I, Class R-II and Class R-III Certificates)
for sale in transactions exempt from the registration requirements of the
Securities Act of 1933 pursuant to a Private Placement Memorandum, dated as of
March 22, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
March 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $833,302,673. The sale of the Mortgage Loans shall take place on
March 29, 2007 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the General Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the General Master Servicer shall provide upon
receipt of such notice, written notice of such defeasance request to the Seller
or its assignee. Until such time as the Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and Obligations shall be delivered to the Seller pursuant to the notice
provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
March 29, 2007, will be executed by the Seller and the General Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of U.S. Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of the Seller, in the appropriate
public office for real property records, each assignment referred to in clauses
(d) and (f)(ii) above (with recording information in blank if such information
is not yet available). Within 15 days following the Closing Date, the Seller
shall deliver and the Purchaser, the Trustee or the agents of either may submit
or cause to be submitted for filing, at the expense of the Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause (i) above. If any such document or instrument
is lost or returned unrecorded or unfiled, as the case may be, because of a
defect therein, the Seller shall prepare a substitute therefor or cure such
defect, and the Seller shall, at its own expense (except in the case of a
document or instrument that is lost by the Trustee), record or file, as the case
may be, and deliver such document or instrument in accordance with this Section
2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph. Each of the foregoing items shall be delivered by the Seller in
electronic form, to the extent such document is available in such form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Trustee or the
Master Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. The Seller's and Purchaser's records shall reflect the
transfer of each Mortgage Loan from the Seller to the Purchaser and its assigns
as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of New York. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's articles of organization or by-laws, (B) any
term or provision of any material agreement, contract, instrument or
indenture to which the Seller is a party or by which it or any of its
assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of March 22,
2007, between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the Memorandum
and the Prospectus Supplement (i) does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (ii) (other than the Memorandum) complies
with the requirements of and contains all of the applicable information
required by Regulation AB (as defined in the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Trustee pursuant to Section 2 is not delivered as and
when required (and including the expiration of any grace or cure period), is not
properly executed or is defective on its face, or if there is a breach of any of
the representations and warranties required to be made by the Seller regarding
the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer or Special Servicer, as applicable, shall be required
to notify the Seller of the discovery of the Material Document Defect or
Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the Special Servicer will not receive a Liquidation
Fee in connection with such liquidation or sale or any portion of the Work-Out
Fee that accrues after the Seller receives notice of a Material Document Defect
or Material Breach until a final determination has been made, as set forth in
the prior paragraph, as to whether the Seller is or was obligated to repurchase
such related Mortgage Loan or REO Property. Upon such determination, the Special
Servicer will be entitled: (i) with respect to a determination that the Seller
is or was obligated to repurchase, to collect a Liquidation Fee, if due in
accordance with the definition thereof, based upon the full Purchase Price of
the related Mortgage Loan or REO property, with such Liquidation Fee payable by
the Seller or (ii) with respect to a determination that Seller is not or was not
obligated to repurchase (or the Trust decides that it will no longer pursue a
claim against the Seller for repurchase), (A) to collect a Liquidation Fee based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan or REO Property, and (B) to collect any accrued and unpaid
Work-Out Fee, based on amounts that were collected for as long as the related
Mortgage Loan was a Rehabilitated Mortgage Loan, in each case with such amount
to be paid from amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the Special Servicer, as applicable, in
connection with modifying a Mortgage Loan pursuant to Section 2.3 of the Pooling
and Servicing Agreement in order for such Mortgage Loan to be a "qualified
substitute mortgage loan" within the meaning of the Treasury Regulations
promulgated under the Code. Upon a breach of the representation and warranty set
forth in paragraph 37 of Exhibit 2 attached hereto, if such Mortgage Loan is
modified so that it becomes a "qualified substitute mortgage loan", such breach
will be cured and the Seller will not be obligated to repurchase or otherwise
remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary of
State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has full
corporate power and authority to enter into and perform its obligations
under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of the
transactions contemplated by the terms of this Agreement (A) conflicts
with or results in a breach or violation of, or constitutes a default
under, the organizational documents of the Seller, (B) to the knowledge of
such counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or by which it or any of its assets is bound or results in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract
or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally, (3)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities
under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
4.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated March 1, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxxx Xxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxxx Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
DISCLAIMER
Prospective investors are advised to read carefully, and should rely solely on,
the Prospectus Supplement dated March 22, 2007, and accompanying Prospectus
dated February 6, 2007 (together, the "Prospectus") relating to the Certificates
referred to below in making their investment decision.
This diskette accompanies and is a part of the Prospectus relating to the
Commercial Mortgage Pass-Through Certificates Series 2007-IQ13 (the
"Certificates"). The information set forth on this diskette is an electronic
copy of the information set forth in Appendix II labeled "Certain
Characteristics of the Mortgage Loans" in the Prospectus. This diskette should
be reviewed only in conjunction with the entire Prospectus. This diskette does
not contain all relevant information relating to the Certificates. Such
information is described elsewhere in the Prospectus.
Methodologies used in deriving certain information contained on this diskette
are more fully described elsewhere in the Prospectus.
The information on this diskette should not be viewed as projections, forecasts,
predictions or opinions with respect to value.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS Any
legends, disclaimers or other notices that may appear at the bottom of, or
attached to, the email communication to which this material may have been
attached are not applicable to these materials and should be disregarded. Such
legends, disclaimers or other notices have been automatically generated as a
result of these materials having been sent via Bloomberg or another email
system.
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Mortgage
Loan No. CMSA Loan No. CMSA Property No. Loan Seller(1) Property Name(2) Loan Group
-------- ------------- ----------------- -------------- ------------------------------------------- ----------
1 1 0-000 XXXX 00-000 Xxxxxxx Xxxxxx 1
2 2-001 MSMC RREEF Portfolio - Xxxxxx'x Crossing 2
2 2-002 MSMC RREEF Portfolio - Lionsgate 2
2 2-003 MSMC RREEF Portfolio - University Heights 2
2 2-004 MSMC RREEF Portfolio - Carlyle Station 2
2 2-005 MSMC RREEF Portfolio - XxXxxx Farms 2
2 2-006 MSMC RREEF Portfolio - Fox Run 2
2 2-007 MSMC RREEF Portfolio - Xxxxxxx Station 2
2 2-008 MSMC RREEF Portfolio - The Xxxx 2
4 4 0-000 XXXX Xx. Xxxxx Xxxxx 1
5 5 0-000 XXXX AT&T Tower 1
6 6 0-000 XXXX XXX Plaza 1
7 7 7-001 MSMC Plymouth Road Technical Center 1
8 8-001 MSMC IVY MHP Portfolio - Tallowood Isles 2
9 9 9-001 MSMC IVY MHP Portfolio - Kissimmee Gardens 2
10 10 10-001 MSMC IVY MHP Portfolio - Paddock Park South 2
11 11 11-001 MSMC IVY MHP Portfolio - Shady Road Villas 2
12 12 12-001 MSMC Northridge I 1
13 13 13-001 MSMC 000 Xxxxxxx Xxxxxx 1
20 20 20-001 MSMC Chula Vista Kmart 1
30 30 30-001 MSMC Turlock Cinema Center 1
37 37 37-001 MSMC Crossings at Xxxxxxx Station 1
40 40 00-000 XXXX Xx Toscana Village 1
51 51 51-001 MSMC Apache Xxxxx 0
00 00 00-000 XXXX Xxxx Xxxxxxx - Xxxxxxxx 1
55 55 55-001 MSMC Skagen Plaza 1
57 57 57-001 MSMC LV Portfolio - Pecos XxXxxx Office Building 1
58 58 58-001 MSMC LV Portfolio - White Sands Retail Building 1
70 70 70-001 MSMC College Mall Apartments 2
71 71 00-000 XXXX Xxx Xxxx Plaza 1
78 78 78-001 MSMC 000X Xxxxxxxx Xxxx 1
80 80 80-001 MSMC CVS & Shops - Downey 1
82 82 82-001 MSMC PNC at Newtown Square 1
85 85 85-001 MSMC 00000 Xxxxxxxxxx Xxxxxx 1
86 86 86-001 MSMC Rite Aid - Fresno 1
87 87 87-001 MSMC Brookside Xxxxxxx Phase II 2
88 88 88-001 MSMC Rite Aid - Hyde Park 1
93 93 93-001 MSMC Aspen Court Medical Building 1
94 94 94-001 MSMC AGIA Office Building 1
103 103 103-001 MSMC 000 X 00xx Xxxxxx 1
104 104 104-001 MSMC 000 X 000xx Xxxxxx 2
105 105 105-001 MSMC Hampton Inn - Melbourne 1
106 106 106-001 MSMC Briarcliff Village 1
107 107 107-001 MSMC Ametek Building 1
115 115 115-001 MSMC Commerce Bank 1
116 116 000-000 XXXX Xxx Xxxx Xxxxxxx Apartments 2
117 117 117-001 MSMC Tinley Court Apartments 2
119 119 000-000 XXXX Xxxx Xxxx Xxxxxxx 1
127 127 127-001 MSMC Tractor Supply - Bulverde 1
Totals and Weighted
Averages:
Mortgage Cross-Collater- Cut-Off Date Post IO Period Cut-Off Balloon
Loan No. alization(2) Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) NCF DSCR(4) Date LTV(4) LTV(4)
-------- --------------- ---------------- ------------ ----------- ----------- -------------- ----------- -------
1 No $210,000,000 $210,000,000 1.20 1.05 NAP 75.2% 75.2%
2 No $35,136,585 $35,136,585 1.02 1.00 NAP 75.8% 75.8%
2 No $25,097,561 $25,097,561 1.02 1.00 NAP 75.8% 75.8%
2 No $24,021,951 $24,021,951 1.02 1.00 NAP 75.8% 75.8%
2 No $21,691,463 $21,691,463 1.02 1.00 NAP 75.8% 75.8%
2 No $17,209,756 $17,209,756 1.02 1.00 NAP 75.8% 75.8%
2 No $10,218,293 $10,218,293 1.02 1.00 NAP 75.8% 75.8%
2 No $7,887,805 $7,887,805 1.02 1.00 NAP 75.8% 75.8%
2 No $5,736,585 $5,736,585 1.02 1.00 NAP 75.8% 75.8%
4 No $90,000,000 $90,000,000 1.76 1.58 NAP 63.4% 63.4%
5 No $65,000,000 $65,000,000 1.57 1.39 1.16 75.0% 69.9%
6 No $43,000,000 $43,000,000 1.34 1.30 NAP 77.5% 77.5%
7 No $34,000,000 $31,519,687 1.57 1.39 1.39 58.4% 26.0%
8 Yes $12,600,000 $12,600,000 1.30 1.28 1.05 70.3% 65.6%
9 Yes $9,100,000 $9,100,000 1.30 1.28 1.05 70.3% 65.6%
10 Yes $3,900,000 $3,900,000 1.30 1.28 1.05 70.3% 65.6%
11 Yes $1,900,000 $1,900,000 1.30 1.28 1.05 70.3% 65.6%
12 No $27,400,000 $27,400,000 1.29 1.10 NAP 78.1% 78.1%
13 No $25,500,000 $25,500,000 1.43 1.39 1.15 68.2% 63.5%
20 No $17,600,000 $17,600,000 1.45 1.37 NAP 67.4% 67.4%
30 No $14,250,000 $14,250,000 1.76 1.64 NAP 69.7% 69.7%
37 No $10,400,000 $10,400,000 1.47 1.41 1.20 71.7% 63.8%
40 No $9,600,000 $9,600,000 1.46 1.38 1.14 71.1% 62.5%
51 No $8,000,000 $8,000,000 1.60 1.49 1.25 69.4% 61.3%
52 No $7,700,000 $7,670,975 1.43 1.35 NAP 59.0% 1.3%
55 No $7,300,000 $7,300,000 1.58 1.50 1.26 62.9% 58.9%
57 Yes $5,025,000 $5,025,000 1.66 1.49 1.23 72.3% 63.6%
58 Yes $2,200,000 $2,200,000 1.66 1.49 1.23 72.3% 63.6%
70 No $6,000,000 $6,000,000 1.60 1.49 1.23 75.9% 70.7%
71 No $6,000,000 $5,986,621 1.43 1.31 NAP 66.5% 56.3%
78 No $5,330,000 $5,322,545 1.59 1.40 NAP 61.9% 51.9%
80 No $5,000,000 $5,000,000 1.57 1.52 NAP 64.1% 64.1%
82 No $4,800,000 $4,784,792 1.22 1.22 NAP 75.9% 64.2%
85 No $4,500,000 $4,500,000 1.70 1.62 1.34 72.6% 63.8%
86 No $4,440,000 $4,433,933 1.28 1.23 NAP 69.3% 58.5%
87 No $4,400,000 $4,400,000 1.57 1.54 1.28 65.7% 61.4%
88 No $4,300,000 $4,300,000 1.23 1.22 NAP 62.3% 38.5%
93 No $4,000,000 $4,000,000 1.41 1.20 NAP 58.0% 48.6%
94 No $4,000,000 $4,000,000 1.88 1.67 NAP 61.5% 61.5%
103 No $3,500,000 $3,495,203 1.16 1.13 NAP 64.7% 54.6%
104 No $3,500,000 $3,495,100 1.17 1.15 NAP 63.5% 53.3%
105 No $3,500,000 $3,493,634 2.64 2.36 NAP 43.7% 33.7%
106 No $3,500,000 $3,490,092 1.35 1.29 NAP 75.9% 65.2%
107 No $3,470,000 $3,462,199 1.33 1.25 NAP 69.9% 63.1%
115 No $3,000,000 $3,000,000 1.46 1.46 1.20 69.8% 65.0%
116 No $3,000,000 $2,995,892 1.20 1.15 NAP 73.1% 61.6%
117 No $3,000,000 $2,982,078 3.23 3.03 NAP 41.4% 32.2%
119 No $2,800,000 $2,800,000 1.50 1.43 1.20 80.0% 70.9%
127 No $2,400,000 $2,394,921 1.27 1.19 NAP 70.4% 60.2%
Totals and Weighted $835,915,000 $833,302,673 1.44x 1.35x 1.19x 69.1% 61.9%
Averages:
Mortgage
Loan No. Street Address City State Zip Code Property Type
-------- ------------------------------------- ---------------- ----- -------- ------------------------------
1 00-000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 Xxxxxx
0 000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Multifamily
2 00000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Multifamily
2 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000 Multifamily
2 00000 Xxxxxx Xxxx Xxxxxxxx XX 00000 Multifamily
2 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Multifamily
2 0 Xxxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Multifamily
2 00 Xxxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000 Multifamily
2 00 Xxxxxxxx Xxx XX Xxxxxxxx XX 00000 Multifamily
4 0000 Xx. Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx XX 00000 Retail
5 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Office
6 00000 Xx Xxxxxx Xxxx Xxx Xxxxx XX 00000 Xxxxxx
0 00000-00000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Mixed Use
8 0000 XX 00xx Xxxxxx Xxxxxxx Xxxxx XX 00000 Manufactured Housing Community
9 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Manufactured Housing Community
10 0000 XX 00xx Xxxxxx Xxxxx XX 00000 Manufactured Housing Community
11 0000 XX 00xx Xxxxxx Xxxxx XX 00000 Manufactured Housing Community
12 00000 Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 Xxxxxx
00 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 Xxxxxx
00 000 Xxxx X Xxxxxx Xxxxx Xxxxx XX 00000 Retail
30 0000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Retail
37 000 XX 00xx Xxxxxx Xxxxxxx XX 00000 Mixed Use
40 0000 X. Xxxxxx Xxxx & 000 X. Xxx Xxxx Xxxxxx XX 00000 Retail
51 00000 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Retail
52 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 Retail
55 00000 XX 000xx Xxxxx Xxxxxxxxx XX 00000 Retail
57 0000 Xxxxx-Xxxxxx Xxx Xxxxx XX 00000 Office
58 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 Retail
70 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxxx XX 00000 Multifamily
71 0-00 Xxx Xxxx Xxxxxxx, 00-00
Xxxxxx Road, 00 Xxxxx Xxxxx,
00-00 Xxxxx Xxx, 000 XX
Xxxxx 0, 00 Xxxxxxxxx Xxx Xxxxxxxxxxx XX 00000 Retail
78 000X Xxxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Office
80 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Retail
82 0000 Xxxx Xxxxxxx Xxxx (PA Route 3) Xxxxxxx Xxxxxx XX 00000 Other
85 00000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Retail
86 0000 X. Xxxx Xxxxxx Xxxxxx XX 00000 Retail
87 000 Xxxx Xxxx Xxxxxxxx Xxxxxx XX 00000 Multifamily
88 Xxx Xxxx Xxxxx Xxxx Xxxx Xxxx XX 00000 Retail
93 000 Xxxxx 00 Xxxxxxxxx XX 00000 Xxxxxx
00 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxxx
000 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Mixed Use
104 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
105 000 Xxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Hospitality
106 0000 X. Xxxxxxxx Xxxxx, Xxxxxxxx X Xxxxxx Xxxx XX 00000 Retail
107 0000 Xxxxxxx Xxxxxx Xxxx XX Xxxxxxxx XX 00000 Industrial
115 000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Other
116 000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxx XX 00000 Multifamily
117 00000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxx XX 00000 Multifamily
119 0000 Xxxxxxx 0 Xxxxxxx XX 00000 Retail
127 00000 Xxxxxxx 000 Xxxxx Xxxxxxxx XX 00000 Retail
Totals and Weighted
Averages:
Mortgage Percent
Loan No. Property Sub-Type Units/SF Year Built Year Renovated Leased(5)
-------- ------------------------------ --------- ------------------------------------------ -------------- ----------
1 Urban 811,687 1929 / 1988 2000 90.7%
2 Garden 532 1989 2004-2006 91.9%
2 Garden 328 2000 NAP 89.6%
2 Garden 467 1991 NAP 85.9%
2 Garden 408 1986 NAP 80.1%
2 Garden 283 1991 NAP 91.2%
2 Garden 218 1990 NAP 94.0%
2 Garden 210 1975 2000 88.6%
2 Garden 134 1986 NAP 83.6%
4 Anchored 1,219,704 2003 NAP 84.5%
5 Urban 606,579 1991 NAP 72.7%
6 Urban 155,930 1996 NAP 100.0%
7 Office/Warehouse 1,148,235 1949 2000 90.5%
8 Manufactured Housing Community 276 1987 NAP 79.3%
9 Manufactured Housing Community 240 1972 NAP 78.3%
10 Manufactured Housing Community 188 1987 NAP 75.0%
11 Manufactured Housing Community 130 1987 NAP 57.7%
12 Suburban 123,208 1988 NAP 93.7%
13 Urban 61,353 1926 NAP 69.7%
20 Free Standing 110,000 1994 NAP 100.0%
30 Anchored 121,000 0000-0000 1998 97.3%
37 Multifamily/Retail 81 2006 NAP 80.9%
40 Unanchored 47,267 1993 / 1996 NAP 100.0%
51 Unanchored 43,717 1986 2007 80.8%
52 Free Standing 76,920 2006 NAP 100.0%
55 Unanchored 25,676 2006 NAP 100.0%
57 Medical 29,700 1992 NAP 100.0%
58 Unanchored 18,002 1988 NAP 93.5%
70 Garden 000 0000-0000 NAP 100.0%
71 Unanchored 83,991 1930 / 1970 / 1974-1976 / 1984-1987 / 1999 1984 98.8%
78 Medical 37,351 1998 NAP 100.0%
80 Unanchored 26,600 2003 NAP 100.0%
82 Leased Fee 4,000 2007 NAP 100.0%
85 Unanchored 18,000 2006 NAP 100.0%
86 Free Standing 17,272 2006 NAP 100.0%
87 Townhouse 36 2006 NAP 97.2%
88 Free Standing 14,564 2006 NAP 100.0%
93 Medical 27,393 1960s 1982 94.4%
94 Suburban 24,709 1989 NAP 100.0%
103 Retail/Multifamily 9,043 1910 NAP 79.2%
000 Xxx Xxxx 22 1925 NAP 100.0%
105 Limited Service 66 1997 2007 78.9%
106 Unanchored 12,409 2006 NAP 87.9%
107 Warehouse 41,000 1989 NAP 100.0%
115 Leased Fee 3,669 2007 NAP 100.0%
116 Garden 46 1969 NAP 84.8%
117 Senior Housing 121 1972 2004-2005 95.0%
119 Unanchored 12,799 2005 NAP 87.2%
127 Free Standing 22,713 2005 NAP 100.0%
Totals and Weighted
Averages:
Mortgage Percent Leased Related Cut-Off Date Balance First Payment
Loan No. as of Date(5) Security Type(6) Lien Position Borrower List per Unit or SF Note Date Date (P&I)(7)
-------- -------------- ---------------- ------------- ------------- -------------------- ---------- -------------
1 01/01/2007 Fee First $259 01/17/2007 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 12/31/2006 Fee First $158,915 12/08/2006 NAP
2 12/31/2006 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
4 02/01/2007 Fee First $74 12/28/2006 NAP
5 02/28/2007 Fee First $107 03/07/2007 04/08/2012
6 02/01/2007 Fee First $276 01/31/2007 NAP
7 09/30/2006 Fee First $27 01/01/2004 08/01/2004
8 08/29/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
9 08/31/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
10 09/01/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
11 09/01/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
12 01/01/2007 Fee First $222 01/18/2007 NAP
13 01/19/2007 Fee First $416 11/16/2006 01/01/2012
20 03/01/2007 Fee First $160 12/27/2006 NAP
30 01/08/2007 Fee First $117 01/11/2007 NAP
37 12/31/2006 Fee First $128,395 01/12/2007 03/01/2009
40 01/23/2007 Fee First $203 01/31/2007 03/01/2009
51 01/17/2007 Fee First $183 01/17/2007 03/01/2009
52 03/01/2007 Leasehold First $100 01/25/2007 03/01/2007
55 12/12/2006 Fee First $284 01/05/2007 03/01/2012
57 01/02/2007 Fee First 57, 58 $151 02/02/2007 04/01/2009
58 12/01/2006 Fee First 57, 58 $151 02/02/2007 04/01/2009
70 02/08/2007 Fee First $42,857 12/28/2006 02/01/2012
71 12/01/2006 Fee First $71 12/27/2006 02/01/2007
78 12/13/2006 Fee First $143 01/11/2007 03/01/2007
80 11/20/2006 Fee / Leasehold First $188 01/25/2007 NAP
82 03/01/2007 Fee First $1,196 11/22/2006 01/01/2007
85 12/01/2006 Fee First $250 12/22/2006 02/01/2009
86 12/07/2006 Fee First $257 01/10/2007 03/01/2007
87 12/27/2006 Fee First 87, 88 $122,222 12/27/2006 02/01/2012
88 12/07/2006 Fee First 87, 88 $295 02/26/2007 04/01/2007
93 01/18/2007 Fee First $146 02/08/2007 04/01/2007
94 10/31/2006 Fee First $162 12/22/2006 NAP
103 02/23/2007 Fee First 103, 104 $387 01/19/2007 03/01/2007
104 01/16/2007 Fee First 103, 104 $158,868 01/17/2007 03/01/2007
105 11/30/2006 Fee First $52,934 01/19/2007 03/01/2007
106 10/12/2006 Fee First $281 11/03/2006 01/01/2007
107 10/24/2006 Fee First $84 12/29/2006 02/01/2007
115 10/11/2006 Fee First $818 12/21/2006 02/01/2012
116 12/01/2006 Fee First $65,128 01/10/2007 03/01/2007
117 12/01/2006 Fee First $24,645 10/11/2006 12/01/2006
119 02/23/2007 Fee First $219 01/16/2007 03/01/2009
127 11/01/2006 Fee First $105 12/20/2006 02/01/2007
Totals and Weighted
Averages:
Mortgage First Payment
Loan No. Date (IO)(7) Maturity Date Due Date Grace Period(8) ARD Loan Lockbox Status Lockbox Type
-------- ------------- ------------- -------- --------------- -------- -------------- --------------------
1 03/08/2007 02/08/2017 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
4 02/08/2007 01/08/2012 8 0 No In-Place Hard
5 04/08/2007 04/08/2017 8 0 No In-Place Hard
6 03/01/2007 02/01/2017 1 0 No In-Place Hard
7 02/01/2004 01/01/2019 1 5 No NAP NAP
8 01/01/2007 12/01/2016 1 5 No NAP NAP
9 01/01/2007 12/01/2016 1 5 No NAP NAP
10 01/01/2007 12/01/2016 1 5 No NAP NAP
11 01/01/2007 12/01/2016 1 5 No NAP NAP
12 03/08/2007 02/08/2012 8 0 No In-Place Hard
13 01/01/2007 12/01/2016 1 0 No In-Place Hard
20 02/01/2007 01/01/2017 1 5 No Springing Hard
30 03/01/2007 02/01/2017 1 5 No NAP NAP
37 03/01/2007 02/01/2017 1 5 No NAP NAP
40 03/01/2007 02/01/2017 1 5 No Springing Hard
51 03/01/2007 02/01/2017 1 5 No NAP NAP
52 NAP 02/01/2022 1 5 No Springing Hard
55 03/01/2007 02/01/2017 1 5 No NAP NAP
57 04/01/2007 03/01/2017 1 5 No Springing Hard
58 04/01/2007 03/01/2017 1 5 No NAP NAP
70 02/01/2007 01/01/2017 1 5 No NAP NAP
71 NAP 01/01/2017 1 5 No NAP NAP
78 NAP 02/01/2017 1 5 No NAP NAP
80 03/08/2007 02/08/2017 8 0 No NAP NAP
82 NAP 12/01/2016 1 5 No Springing Hard
85 02/01/2007 01/01/2017 1 5 No NAP NAP
86 NAP 02/01/2017 1 5 No Springing Hard
87 02/01/2007 01/01/2017 1 5 No NAP NAP
88 NAP 03/01/2022 1 5 No Springing Hard
93 NAP 03/01/2017 1 5 No NAP NAP
94 02/01/2007 01/01/2017 1 5 No NAP NAP
103 NAP 02/01/2017 1 5 Yes NAP NAP
104 NAP 02/01/2017 1 5 No NAP NAP
105 NAP 02/01/2017 1 5 No NAP NAP
106 NAP 12/01/2016 1 5 No NAP NAP
107 NAP 01/01/2014 1 5 No In-Place Soft, Springing Hard
115 02/01/2007 01/01/2017 1 5 No NAP NAP
116 NAP 02/01/2017 1 5 No NAP NAP
117 NAP 11/01/2016 1 5 No NAP NAP
119 03/01/2007 02/01/2017 1 5 No NAP NAP
127 NAP 01/01/2017 1 5 No In-Place Hard
Totals and Weighted
Averages:
Mortgage Original Remaining Term Original Remaining Monthly
Loan No. Term to Maturity to Maturity Amort. Term(9) Amort. Term Mortgage Rate Monthly Payment (P&I) Payment (IO)
-------- ---------------- -------------- -------------- ----------- ------------- --------------------- -------------
1 120 119 IO IO 5.690% NAP $1,009,580
2 60 57 IO IO 5.470% NAP $162,389
2 60 57 IO IO 5.470% NAP $115,992
2 60 57 IO IO 5.470% NAP $111,021
2 60 57 IO IO 5.470% NAP $100,250
2 60 57 IO IO 5.470% NAP $79,537
2 60 57 IO IO 5.470% NAP $47,225
2 60 57 IO IO 5.610% NAP $37,388
2 60 57 IO IO 5.470% NAP $26,512
4 60 58 IO IO 6.390% NAP $485,906
5 121 121 360 360 5.800% $381,389 $318,530
6 120 119 IO IO 5.463% NAP $198,476
7 180 142 240 208 6.250% $248,515 $179,543
8 120 117 360 360 5.620% $72,493 $59,830
9 120 117 360 360 5.620% $52,356 $43,210
10 120 117 360 360 5.620% $22,438 $18,519
11 120 117 360 360 5.620% $10,931 $9,022
12 60 59 IO IO 6.228% NAP $144,181
13 120 117 360 360 5.610% $146,551 $120,868
20 120 118 IO IO 5.880% NAP $87,438
30 120 119 IO IO 5.540% NAP $66,701
37 120 119 360 360 6.100% $63,023 $53,601
40 120 119 360 360 5.590% $55,051 $45,341
51 120 119 360 360 5.780% $46,838 $39,069
52 180 179 180 179 6.010% $65,019 NAP
55 120 119 360 360 5.930% $43,439 $36,575
57 120 120 360 360 5.590% $28,816 $23,733
58 120 120 360 360 5.690% $12,755 $10,577
70 120 118 360 360 5.570% $34,331 $28,237
71 120 118 360 358 5.810% $35,243 NAP
78 120 119 360 359 5.510% $30,297 NAP
80 120 119 IO IO 5.560% NAP $23,488
82 120 117 360 357 5.710% $27,890 NAP
85 120 118 360 360 5.600% $25,834 $21,292
86 120 119 360 359 5.730% $25,854 NAP
87 120 118 360 360 5.800% $25,817 $21,562
88 180 180 300 300 6.460% $28,927 NAP
93 120 120 360 360 5.530% $22,787 NAP
94 120 118 IO IO 5.600% NAP $18,926
103 120 119 360 359 5.700% $20,314 NAP
104 120 119 360 359 5.500% $19,873 NAP
105 120 119 300 299 5.750% $22,019 NAP
106 120 117 360 357 6.300% $21,664 NAP
107 84 82 360 358 5.760% $20,272 NAP
115 120 118 360 360 5.580% $17,185 $14,144
116 120 119 360 359 5.710% $17,431 NAP
117 120 116 300 296 5.820% $19,000 NAP
119 120 119 360 360 5.910% $16,626 $13,982
127 120 118 360 358 6.130% $14,590 NAP
Totals and Weighted
Average: 111 108 345 344 5.734%
Mortgage Third Most Third Most Recent Second Most Second Most Recent
Loan No. Recent NOI(10) NOI End Date Recent NOI NOI End Date Most Recent NOI Most Recent NOI End Date
-------- -------------- ----------------- ----------- ------------------ --------------- ------------------------
1 $19,107,492 12/31/2003 $15,262,125 12/31/2004 $10,906,763 12/31/2005
2 $4,272,417 12/31/2003 $4,424,364 12/31/2004 $4,834,899 12/31/2005
2 $803,037 12/31/2003 $3,143,628 12/31/2004 $3,406,835 12/31/2005
2 $3,660,684 12/31/2003 $3,728,024 12/31/2004 $3,786,052 12/31/2005
2 $2,898,727 12/31/2003 $3,035,081 12/31/2004 $3,045,886 12/31/2005
2 $2,141,293 12/31/2003 $2,279,556 12/31/2004 $2,507,293 12/31/2005
2 $1,645,420 12/31/2003 $1,605,003 12/31/2004 $1,542,739 12/31/2005
2 $1,395,417 12/31/2003 $1,416,381 12/31/2004 $1,399,387 12/31/2005
2 $833,189 12/31/2003 $906,505 12/31/2004 $863,301 12/31/2005
4 $9,508,962 12/31/2004 $7,832,103 12/31/2005 $8,256,126 T-12 (06/30/06) Xxx.
5 NAP NAP $8,101,950 12/31/2005 $7,792,658 T-10 (10/31/06) Xxx.
6 NAP NAP NAP NAP NAP NAP
7 $3,896,269 12/31/2004 $3,692,746 12/31/2005 $4,506,090 T-12 (9/30/06)
8 NAP NAP $878,416 12/31/2005 $818,782 T-8 (8/31/06) Xxx.
9 NAP NAP $592,152 12/31/2005 $551,521 T-8 (8/31/06) Xxx.
10 $292,281 12/31/2004 $314,600 12/31/2005 $322,420 T-8 (8/31/06) Xxx.
11 NAP NAP $88,215 12/31/2005 $85,476 T-8 (8/31/06) Xxx.
12 NAP NAP $2,753,706 12/31/2004 $1,186,378 12/31/2005
13 NAP NAP NAP NAP NAP NAP
20 $1,559,235 12/31/2004 $1,559,543 12/31/2005 $1,527,902 12/31/2006
30 $553,906 12/31/2004 $694,443 12/31/2005 $1,289,165 T-12 (11/30/06)
37 NAP NAP NAP NAP $278,952 T-6 (12/31/06)
40 $723,326 12/31/2004 $793,818 12/31/2005 $809,274 12/31/2006
51 NAP NAP NAP NAP $463,947 T-9 (11/30/06) Xxx.
52 NAP NAP NAP NAP NAP NAP
55 NAP NAP NAP NAP $103,408 T-5 (11/30/06) Xxx.
57 NAP NAP $325,325 12/31/2005 $358,028 T-11 (11/30/06) Xxx.
58 NAP NAP NAP NAP $210,178 T-11 (11/30/06) Xxx.
70 $615,762 12/31/2004 $553,066 12/31/2005 $504,689 12/31/2006
71 $621,396 12/31/2004 $474,421 12/31/2005 $650,871 T-12 (10/31/06)
78 $609,993 12/31/2004 $558,575 12/31/2005 $574,240 T-12 (10/31/06)
80 $453,584 12/31/2004 $496,856 12/31/2005 $445,880 T-12 (11/27/06)
82 NAP NAP NAP NAP NAP NAP
85 NAP NAP NAP NAP NAP NAP
86 NAP NAP NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP NAP
88 NAP NAP NAP NAP NAP NAP
93 $257,124 12/31/2004 $296,461 12/31/2005 $365,011 12/31/2006
94 $535,266 12/31/2004 $498,589 12/31/2005 $466,167 T-10 (10/31/06) Xxx.
103 NAP NAP NAP NAP NAP NAP
104 NAP NAP NAP NAP $241,410 T-8 (8/31/06) Xxx.
105 $570,717 12/31/2004 $758,512 12/31/2005 $858,668 T-12 (11/30/06)
106 NAP NAP NAP NAP NAP NAP
107 $155,093 12/31/2004 $324,402 12/31/2005 $404,761 T-12 (9/30/06)
115 NAP NAP NAP NAP NAP NAP
116 $224,074 12/31/2004 $202,770 12/31/2005 $225,812 T-10 (10/31/06) Xxx.
117 $684,735 12/31/2004 $743,038 12/31/2005 $937,289 T-8 (8/31/06) Xxx.
119 NAP NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP $229,025 T-12 (9/30/2006)
Totals and Weighted
Averages:
Mortgage
Loan No. Underwritten EGI Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow
-------- ---------------- --------------------- ----------------- --------------------- -----------------------
1 $27,171,572 $12,596,845 $14,574,727 $1,900,510 $12,674,217
2 $8,149,117 $2,466,421 $5,682,696 $133,000 $5,549,696
2 $5,611,295 $1,616,078 $3,995,217 $82,000 $3,913,217
2 $5,448,712 $1,963,029 $3,485,683 $116,750 $3,368,933
2 $4,540,703 $1,693,310 $2,847,392 $102,000 $2,745,392
2 $4,180,386 $1,237,938 $2,942,448 $70,750 $2,871,698
2 $2,781,557 $1,058,304 $1,723,253 $54,500 $1,668,753
2 $2,413,462 $836,404 $1,577,058 $52,500 $1,524,558
2 $1,606,782 $550,579 $1,056,203 $33,500 $1,022,703
4 $20,958,915 $10,723,959 $10,234,956 $1,001,445 $9,233,510
5 $11,563,688 $5,564,113 $5,999,576 $678,834 $5,320,742
6 $4,668,615 $1,468,959 $3,199,656 $99,795 $3,099,861
7 $6,883,766 $2,191,360 $4,692,406 $551,035 $4,141,371
8 $1,600,979 $686,263 $914,716 $13,800 $900,916
9 $1,006,536 $352,593 $653,943 $12,000 $641,943
10 $586,178 $262,627 $323,551 $9,400 $314,151
11 $322,222 $174,564 $147,658 $6,500 $141,158
12 $3,330,739 $1,102,699 $2,228,040 $324,849 $1,903,191
13 $3,431,868 $1,351,136 $2,080,732 $58,328 $2,022,404
20 $1,946,308 $425,646 $1,520,662 $79,550 $1,441,112
30 $1,908,995 $502,200 $1,406,795 $91,669 $1,315,126
37 $1,225,823 $280,921 $944,902 $38,488 $906,414
40 $1,081,645 $289,755 $791,890 $42,067 $749,823
51 $930,749 $180,159 $750,590 $50,275 $700,315
52 $1,895,845 $783,536 $1,112,309 $57,690 $1,054,619
55 $875,597 $181,330 $694,267 $37,744 $656,524
57 $596,921 $145,342 $451,579 $52,569 $399,010
58 $304,835 $74,814 $230,021 $16,750 $213,271
70 $1,129,543 $588,214 $541,329 $35,250 $506,079
71 $937,883 $332,145 $605,738 $52,915 $552,823
78 $981,924 $405,219 $576,705 $67,605 $509,100
80 $764,605 $322,655 $441,950 $12,236 $429,714
82 $420,000 $12,600 $407,400 $0 $407,400
85 $532,489 $97,819 $434,670 $20,160 $414,510
86 $507,882 $112,285 $395,597 $15,200 $380,397
87 $621,034 $214,397 $406,637 $9,000 $397,637
88 $443,929 $15,318 $428,611 $5,826 $422,785
93 $646,200 $259,357 $386,843 $57,490 $329,354
94 $550,735 $123,935 $426,800 $47,194 $379,606
103 $392,027 $108,790 $283,237 $8,248 $274,990
104 $423,990 $144,504 $279,487 $5,500 $273,987
105 $1,908,967 $1,210,212 $698,755 $76,359 $622,396
106 $456,466 $104,559 $351,907 $17,372 $334,535
107 $493,115 $168,683 $324,432 $20,090 $304,342
115 $254,625 $6,296 $248,329 $0 $248,329
116 $462,384 $211,370 $251,014 $11,397 $239,617
117 $1,978,157 $1,242,620 $735,537 $44,528 $691,009
119 $302,559 $50,116 $252,442 $12,928 $239,515
127 $309,871 $86,742 $223,128 $14,082 $209,046
Totals and Weighted
Averages:
Cooperative Loans
------------------------------------------
Mortgage Unsold
Loan No. Balloon Balance Current Value(11) Source of Value Valuation Date Rental Value(12) LTV as Rental Percent
-------- --------------- ----------------- --------------- -------------- ---------------- ------------- -------
1 $210,000,000 $279,200,000 Appraisal 11/28/2006 NAP NAP NAP
2 $35,136,585 $129,000,000 Appraisal 08/01/2006 NAP NAP NAP
2 $25,097,561 $94,800,000 Appraisal 08/01/2006 NAP NAP NAP
2 $24,021,951 $92,100,000 Appraisal 08/01/2006 NAP NAP NAP
2 $21,691,463 $75,600,000 Appraisal 08/01/2006 NAP NAP NAP
2 $17,209,756 $61,500,000 Appraisal 08/01/2006 NAP NAP NAP
2 $10,218,293 $35,600,000 Appraisal 08/01/2006 NAP NAP NAP
2 $7,887,805 $32,300,000 Appraisal 08/04/2006 NAP NAP NAP
2 $5,736,585 $20,000,000 Appraisal 08/01/2006 NAP NAP NAP
4 $90,000,000 $142,000,000 Appraisal 12/01/2006 NAP NAP NAP
5 $60,642,643 $86,700,000 Appraisal 12/14/2006 NAP NAP NAP
6 $43,000,000 $55,500,000 Appraisal 01/03/2007 NAP NAP NAP
7 $14,025,571 $54,000,000 Appraisal 03/01/2007 NAP NAP NAP
8 $11,745,126 $18,100,000 Appraisal 10/30/2006 NAP NAP NAP
9 $8,482,591 $12,500,000 Appraisal 10/26/2006 NAP NAP NAP
10 $3,635,396 $5,500,000 Appraisal 10/25/2006 NAP NAP NAP
11 $1,771,091 $3,000,000 Appraisal 10/25/2006 NAP NAP NAP
12 $27,400,000 $35,100,000 Appraisal 12/18/2006 NAP NAP NAP
13 $23,766,619 $37,400,000 Appraisal 10/30/2006 NAP NAP NAP
20 $17,600,000 $26,100,000 Appraisal 11/22/2006 NAP NAP NAP
30 $14,250,000 $20,450,000 Appraisal 12/01/2006 NAP NAP NAP
37 $9,250,090 $14,500,000 Appraisal 11/01/2006 NAP NAP NAP
40 $8,440,341 $13,500,000 Appraisal 12/22/2006 NAP NAP NAP
51 $7,064,557 $11,520,000 Appraisal 11/15/2006 NAP NAP NAP
52 $167,640 $13,000,000 Appraisal 12/11/2006 NAP NAP NAP
55 $6,831,629 $11,600,000 Appraisal 12/08/2006 NAP NAP NAP
57 $4,421,351 $6,800,000 Appraisal 01/02/2007 NAP NAP NAP
58 $1,940,250 $3,200,000 Appraisal 01/02/2007 NAP NAP NAP
70 $5,587,989 $7,900,000 Appraisal 12/01/2006 NAP NAP NAP
71 $5,069,578 $9,000,000 Appraisal 09/01/2006 NAP NAP NAP
78 $4,462,462 $8,600,000 Appraisal 12/01/2006 NAP NAP NAP
80 $5,000,000 $7,800,000 Appraisal 11/21/2006 NAP NAP NAP
82 $4,044,605 $6,300,000 Appraisal 06/01/2007 NAP NAP NAP
85 $3,957,609 $6,200,000 Appraisal 10/04/2006 NAP NAP NAP
86 $3,742,170 $6,400,000 Appraisal 11/17/2006 NAP NAP NAP
87 $4,110,732 $6,700,000 Appraisal 11/23/2006 NAP NAP NAP
88 $2,658,524 $6,900,000 Appraisal 02/01/2007 NAP NAP NAP
93 $3,353,889 $6,900,000 Appraisal 11/30/2006 NAP NAP NAP
94 $4,000,000 $6,500,000 Appraisal 11/30/2006 NAP NAP NAP
103 $2,947,256 $5,400,000 Appraisal 11/30/2006 NAP NAP NAP
104 $2,929,423 $5,500,000 Appraisal 11/30/2006 NAP NAP NAP
105 $2,695,639 $8,000,000 Appraisal 12/08/2006 NAP NAP NAP
106 $3,000,388 $4,600,000 Appraisal 09/07/2006 NAP NAP NAP
107 $3,125,655 $4,950,000 Appraisal 10/25/2006 NAP NAP NAP
115 $2,794,381 $4,300,000 Appraisal 12/01/2006 NAP NAP NAP
116 $2,526,978 $4,100,000 Appraisal 11/13/2006 NAP NAP NAP
117 $2,316,377 $7,200,000 Appraisal 08/17/2006 NAP NAP NAP
119 $2,479,896 $3,500,000 Appraisal 10/02/2006 NAP NAP NAP
127 $2,046,879 $3,400,000 Appraisal 08/30/2006 NAP NAP NAP
Totals and Weighted
Averages:
Cooperative Loans
------------------------------------------------------------
Mortgage Sponsor/
Loan No. Sponsor Units Investor Units Coop Units Investor Carry Largest Tenant(13) Lease Expiration Date
-------- ------------- -------------- ---------- -------------- ------------------------------ ---------------------
1 NAP NAP NAP NAP Xxxxxxx & Xxxxxx 03/01/2008
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
4 NAP NAP NAP NAP Cabela's 04/30/2022
5 NAP NAP NAP NAP AT&T 06/30/2011
6 NAP NAP NAP NAP ICW 12/31/2016
7 NAP NAP NAP NAP Xxxxx Enterprises, Inc 02/28/2011
8 NAP NAP NAP NAP NAP NAP
9 NAP NAP NAP NAP NAP NAP
10 NAP NAP NAP NAP NAP NAP
11 NAP NAP NAP NAP NAP NAP
12 NAP NAP NAP NAP GSA 01/31/2011
13 NAP NAP NAP NAP Mill Run Tours 02/29/2008
20 NAP NAP NAP NAP Big K-mart 10/31/2022
30 NAP NAP NAP NAP Regal Cinema 11/30/2023
37 NAP NAP NAP NAP NAP NAP
40 NAP NAP NAP NAP ReMax Realty 08/31/2011
51 NAP NAP NAP NAP St. Xxxxxxx xx Xxxx MTM
52 NAP NAP NAP NAP Xxxx Theatres III, LLC 12/31/2025
55 NAP NAP NAP NAP Sleep Country USA 09/22/2012
57 NAP NAP NAP NAP Novum Pharmaceutical 06/30/2009
58 NAP NAP NAP NAP Best Cycle Parts 09/30/2007
70 NAP NAP NAP NAP NAP NAP
71 NAP NAP NAP NAP Oak Hill Hardware, Inc. (Ace) 03/31/2009
78 NAP NAP NAP NAP University Radiology Group, PC 12/31/2016
80 NAP NAP NAP NAP
82 NAP NAP NAP NAP CVS Xxxxxx, X.X. 01/31/2026
85 NAP NAP NAP NAP PNC Bank 10/31/2021
86 NAP NAP NAP NAP Washington Health Club 07/01/2016
87 NAP NAP NAP NAP Thrifty Payless, Inc. 12/31/2026
88 NAP NAP NAP NAP NAP NAP
93 NAP NAP NAP NAP Rite Aid 02/07/2027
94 NAP NAP NAP NAP Advanced Endoscopy 12/31/2013
103 NAP NAP NAP NAP AGIA 12/31/2010
104 NAP NAP NAP NAP Uncle Abie's Deli Inc. 12/31/2026
105 NAP NAP NAP NAP NAP NAP
106 NAP NAP NAP NAP NAP NAP
107 NAP NAP NAP NAP Piropos 10/31/2019
115 NAP NAP NAP NAP Ametek 11/01/2015
116 NAP NAP NAP NAP Commerce Bank 10/10/2031
117 NAP NAP NAP NAP NAP NAP
119 NAP NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP Salon 06/30/2011
Tractor Supply 06/30/2020
Totals and Weighted
Averages:
Mortgage Lease
Loan No. % NSF Second Largest Tenant Expiration Date % NSF Third Largest Tenant
-------- ----- --------------------------- --------------- ---------- --------------------------------------------
1 9.9% Sherin and Lodgen 07/01/2014 5.1% HQ Global Workplaces
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
4 11.1% Regal Cinemas 12/16/2018 6.9% Burlington Coat Factory
5 39.2% Utility Engineering Corp. 08/31/2011 8.9% Navitaire Inc.
6 39.9% American Assets 07/31/2016 11.9% Mission Ventures Operating Co.
7 44.0% NYX, Inc 02/28/2014 9.4% Virginia Title Company
8 NAP NAP NAP NAP NAP
9 NAP NAP NAP NAP NAP
10 NAP NAP NAP NAP NAP
11 NAP NAP NAP NAP NAP
12 36.3% Time Warner Cable Inc. 04/30/2009 33.7% Xxxxxx-Xxxx and Associates, Inc.
13 13.5% Xxxxx Xxxxx & Associates 03/31/2009 6.7% NY Musculo-Skeletal, P.C.
20 100.0% NAP NAP NAP NAP
30 49.6% Tractor Supply Co. 01/01/2021 17.9% Funworks
37 NAP NAP NAP NAP NAP
40 23.4% Blockbuster Video 06/30/2008 12.7% Honey Baked Ham
51 13.7% DOC and CPS 05/31/2012 7.5% Xxxx Tools
52 100.0% NAP NAP NAP NAP
55 24.3% The Rock Wood Fired Pizza 11/24/2016 19.5% Panda Express
57 92.6% Weststar Credit 11/30/2007 7.4% NAP
58 28.5% P.T. Gaming, LLC 12/31/2007 25.6% Handy Cash Loan Center
70 NAP NAP NAP NAP NAP
71 13.7% Family Dollar, Inc. 06/30/2010 7.7% United States Post Office
78 60.7% Contemporary Plastic Surgery
Associates, L.L.C. 06/30/2009 12.0% Highland Park Medical Associates, P.A.
80 45.1% Home Town Buffet 12/31/2018 35.3% Cingular Wireless PCS, LLC
82 100.0% NAP NAP NAP NAP
85 33.3% Catfish Lewie's 08/31/2016 13.3% Black Belt College
86 100.0% NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP
88 100.0% NAP NAP NAP NAP
93 21.6% Monmouth Gastroenterology 12/31/2014 15.3% Women's Health Alliance
94 100.0% NAP NAP NAP NAP
103 27.3% NAP NAP NAP NAP
104 NAP NAP NAP NAP NAP
105 NAP NAP NAP NAP NAP
106 55.8% Prairiebrooke Arts 09/30/2013 21.2% Bells Flowers
107 65.7% ABC Rentals 12/01/2015 34.3% NAP
115 100.0% NAP NAP NAP NAP
116 NAP NAP NAP NAP NAP
117 NAP NAP NAP NAP NAP
119 22.2% Xxx Xxx'x BBQ 09/30/2010 20.9% Japanese Restaurant
127 100.0% NAP NAP NAP NAP
Totals and Weighted
Averages:
Mortgage Lease Insurance Tax Escrow Capital Expenditure TI/LC Escrow Other Escrow
Loan No. Expiration Date % NSF Escrow in Place in Place(14) Escrow in Place(15) in Place(16) Description(17)
-------- --------------- ----- --------------- ------------ ------------------- ------------ --------------------------
1 09/01/2016 4.8% No No Yes Yes NAP
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
4 01/31/2014 6.6% Yes Yes Yes Yes Travelers Indemnity
reserve of $2,500,000;
TDD reserve of $3,500,000
5 01/31/2008 7.8% No Yes No Yes NAP
6 06/30/2012 5.0% No Yes No No NAP
7 06/30/2017 9.2% No Yes No Yes Debt Service Shortfall
Reserve
8 NAP NAP No Yes No No Master Lease Holdback
Reserve
9 NAP NAP No Yes No No Master Lease Holdback
Reserve
10 NAP NAP No Yes No No NAP
11 NAP NAP No Yes No No Master Lease Holdback
Reserve
12 01/31/2011 17.4% Yes Yes Yes Yes Debt Service Reserve
13 12/31/2013 6.7% No Yes Yes No Interest Escrow LOC
20 NAP NAP No No No No NAP
30 09/30/2011 5.8% No No No No NAP
37 NAP NAP Yes Yes No No Vacant Space Reserve
($224,000); Windermere
TILC Reserve ($119,375);
Holdback ($600,000)
40 03/31/2011 9.1% No No No No NAP
51 12/31/2013 7.3% Yes Yes Yes Yes Facade Escrow ($360,000);
Whataburger ($250,000);
Taco Xxxx ($1,000,000);
Leasing Reserve
($750,000)
52 NAP NAP No No No No NAP
55 07/14/2026 9.5% Yes Yes No Yes Outstanding TI Reserve
57 NAP NAP No Yes Yes Yes NAP
58 01/31/2010 11.7% No Yes Yes Yes NAP
70 NAP NAP No Yes Yes No NAP
71 07/31/2011 7.1% No Yes Yes Yes NAP
78 06/30/2014 8.5% No Yes No No NAP
02/28/2013 11.3% No No No No NAP
80 NAP NAP No No No No PNC Bank Reserve
82 08/31/2016 13.3% Yes Yes Yes Yes NAP
85 NAP NAP No No No No NAP
86 NAP NAP Yes Yes No No NAP
87 NAP NAP No No Yes No NAP
88 10/31/2008 9.8% Yes Yes Yes Yes NAP
93 NAP NAP No Yes Yes No NAP
94 NAP NAP No Yes Yes Yes NAP
103 NAP NAP No Yes Yes No NAP
104 NAP NAP No Yes No No NAP
105 10/31/2011 10.8% Yes Yes Yes Yes Vacancy Holdback Reserve
106 NAP NAP Yes Yes Yes Yes NAP
107 NAP NAP No No No No NAP
115 NAP NAP Yes Yes Yes No NAP
116 NAP NAP No No No No NAP
117 01/12/2012 18.5% No Yes Yes Yes Holdback
119 NAP NAP No No No No NAP
127
Totals and Weighted
Averages:
Initial Capital Monthly Capital Current Capital
Mortgage Expenditure Expenditure Expenditure
Loan No. Springing Escrow Description(18) Escrow Requirement(19) Escrow Requirement(20) Escrow Balance (21)
-------- -------------------------------------- ---------------------- ---------------------- --------------------
1 RE Tax, Insurance , TI/LC $0 $13,500 $0
2 Insurance $12,222 $11,082 $12,222
2 Insurance $8,730 $6,832 $8,730
2 Insurance $8,356 $9,728 $8,356
2 Insurance $7,545 $8,499 $7,545
2 Insurance $5,986 $5,895 $5,986
2 Insurance $4,542 $4,541 $4,542
2 Insurance $4,375 $4,374 $0
2 Insurance $1,995 $2,791 $1,995
4 NAP $0 $20,322 $0
5 TI/LC $0 $0 $0
6 Insurance $0 $0 $0
7 NAP $0 $0 $0
8 Insurance, CapEx $0 $0 $0
9 Insurance, CapEx $0 $0 $0
10 Insurance, CapEx $0 $0 $0
11 Insurance, CapEx $0 $0 $0
12 TI/LC $0 $2,627 $0
13 Insurance, TI/LC $0 $1,077 $1,077
20 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
30 RE Tax, Insurance, TI/LC $0 $0 $0
37 CapEx, TI/LC $0 $0 $0
40 RE Tax, Other $0 $0 $0
51 TI/LC $0 $546 $0
52 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
55 CapEx, TI/LC $0 $0 $0
57 Insurance, TI/LC $0 $495 $0
58 Insurance, TI/LC $0 $300 $0
70 Insurance $0 $2,855 $0
71 RE Tax, Insurance, TI/LC $0 $1,050 $0
78 Insurance, TI/LC $0 $0 $0
80 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
82 TI/LC $0 $0 $0
85 TI/LC $0 $300 $0
86 RE Tax, Insurance, CapEx, TI/LC, Other $0 $0 $0
87 NAP $0 $0 $0
88 RE Tax, Insurance $0 $182 $0
93 TI/LC $0 $457 $0
94 TI/LC $0 $412 $0
103 Insurance, TI/LC $0 $194 $0
104 Insurance $0 $458 $0
105 Insurance, CapEx $0 $0 $0
106 TI/LC $0 $155 $0
107 TI/LC $0 $513 $0
115 RE Tax, Insurance, CapEx $0 $0 $0
116 NAP $0 $950 $0
117 RE Tax, Insurance, CapEx $0 $0 $0
119 Insurance, TI/LC $0 $160 $0
127 RE Tax, Insurance, CapEx, TI/LC, Other $0 $0 $0
Totals and Weighted
Averages:
Mortgage Initial TI/LC Escrow Monthly TI/LC Current TI/LC Environmental Interest
Loan No. Requirement (22) Escrow Requirement(23) Escrow Balance(24) Insurance Accrual Method Seasoning(25)
-------- -------------------- ---------------------- ------------------ ------------- -------------- -------------
1 $5,000,000 $0 $0 No Actual/360 1
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
4 $17,700,000 $0 $17,700,000 No Actual/360 2
5 $3,500,000 $0 $3,500,000 No Actual/360 0
6 $0 $0 $0 No Actual/360 1
7 $50,000 $45,833 $599,652 No 30/360 38
8 $0 $0 $0 No Actual/360 3
9 $0 $0 $0 No Actual/360 3
10 $0 $0 $0 No Actual/360 3
11 $0 $0 $0 No Actual/360 3
12 $225,000 $26,792 $0 No Actual/360 1
13 $0 $0 $0 No Actual/360 3
20 $0 $0 $0 No Actual/360 2
30 $0 $0 $0 No Actual/360 1
37 $0 $0 $0 No Actual/360 1
40 $0 $0 $0 No Actual/360 1
51 $0 $2,083 $0 No Actual/360 1
52 $0 $0 $0 No Actual/360 1
55 $0 $1,667 $0 No Actual/360 1
57 $279,000 (LOC) $0 $279,000 (LOC) No Actual/360 0
58 $200,000 (LOC) $0 $200,000 (LOC) No Actual/360 0
70 $0 $0 $0 No Actual/360 2
71 $50,000 $6,999 $50,000 No Actual/360 2
78 $0 $0 $0 No Actual/360 1
80 $0 $0 $0 No Actual/360 1
82 $0 $0 $0 No Actual/360 3
85 $0 $1,410 $0 No Actual/360 2
86 $0 $0 $0 No Actual/360 1
87 $0 $0 $0 No Actual/360 2
88 $0 $0 $0 No Actual/360 0
93 $0 $1,712 $0 No Actual/360 0
94 $0 $0 $0 No Actual/360 2
103 $0 $353 $0 No Actual/360 1
104 $0 $0 $0 No Actual/360 1
105 $0 $0 $0 No Actual/360 1
106 $0 $1,250 $0 No Actual/360 3
107 $0 $2,000 $0 No Actual/360 2
115 $0 $0 $0 No Actual/360 2
116 $0 $0 $0 No Actual/360 1
117 $0 $0 $0 No Actual/360 4
119 $0 $533 $0 No Actual/360 1
127 $0 $0 $0 No Actual/360 2
Totals and Weighted
Averages:
Prepayment Code(25)
---------------------------------------------------------------------
Mortgage Administrative Mortgage
Loan No. LO DEF DEF/YM1 YM3 YM1 3% 2% 1% Open YM Formula(27) Cost Rate (28) Loan No.
-------- -- --- ------- --- --- - - - ---- -------------- ------------- --------
1 25 91 4 A 2.085 1
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
4 26 32 2 2.085 4
5 24 96 1 2.085 5
6 25 90 5 2.085 6
7 59 117 4 B 2.085 7
8 27 89 4 2.085 8
9 27 89 4 2.085 9
10 27 89 4 2.085 10
11 27 89 4 2.085 11
12 23 23 2 12 C 2.085 12
13 27 89 4 2.085 13
20 26 90 4 8.085 20
30 47 69 4 E 6.085 30
37 25 91 4 2.085 37
40 25 91 4 6.085 40
51 25 91 4 8.085 51
52 25 151 4 7.085 52
55 25 91 4 2.085 55
57 24 92 4 2.085 57
58 24 92 4 2.085 58
70 26 87 7 7.085 70
71 26 90 4 7.085 71
78 25 91 4 2.085 78
80 25 90 5 I 2.085 80
82 27 89 4 2.085 82
85 26 90 4 2.085 85
86 25 91 4 2.085 86
87 26 81 13 9.085 87
88 24 152 4 2.085 88
93 24 94 2 2.085 93
94 26 33 61 2.085 94
103 25 88 7 J 2.085 103
104 25 88 7 K 2.085 104
105 25 88 7 2.085 105
106 27 89 4 L 2.085 106
107 26 54 4 2.085 107
115 26 90 4 8.085 115
116 25 91 4 2.085 116
117 28 88 4 E 2.085 117
119 25 91 4 2.085 119
127 26 90 4 2.085 127
Totals and Weighted
Averages:
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all of
the related Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged Property
operated as a hotel or an assisted living facility, the Mortgagor's personal
property includes all personal property that a prudent mortgage lender making a
similar Mortgage Loan would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, to the extent a
security interest may be so created therein, and such security interest is a
first priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases applicable
to such personal property. Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
(5) Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since March 22, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, each Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage (or
adequate reserves therefor have been established based on the engineering
report) that would materially and adversely affect its value as security for the
related Mortgage Loan and (ii) the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an engineering report 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, each Mortgaged
Property is in good repair and condition and all building systems contained
therein are in good working order (or adequate reserves therefor have been
established) and each Mortgaged Property is free of structural defects, in each
case, that would materially and adversely affect its value as security for the
related Mortgage Loan as of the date hereof. The Seller has received no notice
of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage Loan,
all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's Title Policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, or any such funds so escrowed have not been
released.
(10) Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(11) Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1)
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the first
day of the month that is 18 months prior to the Closing Date, an environmental
site assessment, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination or the
acquisition of the related Mortgage Loan, a report of each such assessment (or
the most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security that was
deemed to be sufficient by the originator in light of the circumstances and/or
to establish an operations and maintenance plan. In connection with the
origination of each Mortgage Loan, each environmental consultant has represented
in such Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted utilizing
generally accepted Phase I industry standards using the American Society for
Testing and Materials (ASTM) Standard Practice E 1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment meeting ASTM
Standards after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that (1) the value, use or
operation of such Mortgaged Property is materially and adversely affected or (2)
under applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting the
value of the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security interest
therein, to liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the value of
the Mortgaged Property, and (ii) such Mortgaged Property is in material
compliance with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of such Mortgaged Property
and neither Seller nor, to Seller's knowledge, the related Mortgagor or any
current tenant thereon, has received any notice of violation or potential
violation of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not prohibit
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage;
(j) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception on Schedule A attached hereto to another representation and
warranty made by the seller in this Exhibit 2, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. ss.1.860G-2(b)(2) and (b) would
not cause such Mortgage Loan to fail to be a "qualified mortgage" within the
meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
(33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) Prepayment Premiums. As of the applicable date of origination of each
such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in, and operation of,
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) Authorized to do Business. To the extent required under applicable
law as of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not, as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage Loan operating statements and (if there is more than
one tenant) rent rolls and/or financial statements of the Mortgagor annually),
and such other information as may be required therein.
(46) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
Representation No. 2: Whole Loan; Ownership of Mortgage Loans
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Loan No. 2, RREEF Portfolio: The related whole loan consists of pari passu
notes, two of which are the mortgage loan.
Representation No. 5: Assignment of Leases and Rents
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Loan No. 2, RREEF Portfolio: The assignment of leases and rents has been
transferred to the trustee of the 2007-HQ11 CMBS transaction, into which the
lead pari passu note has been deposited.
Representation No. 7: Condition of Property; Condemnation
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Loan No. 82, PNC at Newtown Square: The improvements, a retail bank branch with
parking, have not been completed. However, the construction of the improvements
is the responsibility of the tenant rather than the borrower.
Loan No. 115, Commerce Bank: The improvements, a retail bank branch with
parking, have not been completed. However, the construction of the improvements
is the responsibility of the tenant rather than the borrower.
Representation No. 12: Environmental Conditions
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Loan Xx. 00, Xxxxxxxxxx X: The borrower is required to remediate a duel sill at
the property under the loan documents. If remediation had not commenced within
120 days, the borrower would be required to deposit $50,000 with lender. In the
event that such remediation has not been completed in accordance with the loan
documents within 18 months and the borrower was not diligently pursuing the
remediation or causing another party to diligently pursue such remediation
(including exercising any legal remedies available to the borrower with respect
thereto), then it would be an event of default if such failure continues 30 days
after notice from lender.
Representation No. 14: Insurance
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Loan No. 82, PNC at Newtown Square: The tenant is responsible for completing the
improvements and carrying casualty coverage on the improvements.
Loan No. 115, Commerce Bank: The tenant is responsible for completing the
improvements and carrying casualty coverage on the improvements.
Representation No. 17: Leasehold Estate
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Loan Xx. 00, Xxxx Xxxxxxx - Xxxxxxxx: There is a mortgage encumbering the fee
title, which the ground lease is subordinate to pursuant to an SNDA executed
among the ground lessor, ground lessee, fee mortgagee and the lender. The Ground
Lease Estoppel Certificate and Modification Agreement provides that if the SNDA
is rejected in bankruptcy, it would no longer be effective and the ground lease
would retain its priority over such fee mortgage.
Representation No. 24: Cross-collateralization
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Loan No. 2, RREEF Portfolio: The related whole loan consists of pari passu
notes, two of which are the mortgage loan.
Representation No. 25: Releases of Mortgaged Property
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Loan No. 4, St. Xxxxx Xxxxx: The borrower may obtain a release of a designated
parcel, without any required prepayment of the mortgage loan, in order to
facilitate the addition or expansion of improvements on the mortgaged property
(or such released parcel) for retail, hotel, restaurant, entertainment, office
or multifamily residential purposes, subject to certain conditions, including
that the addition or expansion must be compatible with the use and operation of
the mortgaged property as a large regional retail shopping center.
Loan Nos. 8-11, IVY MHP: The borrower may obtain a release of a portion of the
mortgaged properties, subject to certain conditions, including: (i) DSCR
immediately following such release is at least equal to the greater of 1.05x or
DSCR immediately prior to such release, (ii) defeasance collateral equal to 110%
relating to the released property is provided, and (iii) immediately following
such release, LTV will be no greater than 80%.
Loan No. 20, Chula Vista Kmart: The borrower is permitted to obtain a release of
the mortgaged property ("Substituted Property") by substituting therefor the
borrower's fee interest in another property ("Substitute Property"), subject to
certain conditions, including: (i) LTV for the Substitute Property is not
greater than the lesser of (a) 70% or (b) LTV for the Substituted Property at
the time of such substitution, and (ii) after giving effect to such
substitution, DSCR is not less than the greater of (a) 1.37x or (b) DSCR
immediately prior to such substitution.
Loan No. 57, LV Portfolio - Pecos XxXxxx Office Building: The borrower is
permitted to obtain a release of the lien on an individual property following
the second anniversary of the securitization, subject to certain conditions,
including the following: (i) DSCR for the remaining properties is 1.17x or
greater for the trailing 12 months, (ii) defeasance collateral equal to 125%
relating to the released property is provided, and (iii) LTV on the remaining
properties will not be greater than 75%.
Loan No. 58, LV Portfolio - White Sands Retail Building: The borrower is
permitted to obtain a release of the lien on an individual property following
the second anniversary of the securitization, subject to certain conditions,
including the following: (i) DSCR for the remaining properties is 1.17x or
greater for the trailing 12 months, (ii) defeasance collateral equal to 125%
relating to the released property is provided, and (iii) LTV on the remaining
properties will not be greater than 75%.
Representation No. 30: Junior Liens
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Loan No. 2, RREEF Portfolio: There exists one or more pari passu notes for the
mortgage loan.
Loan No. 37, Crossings at Xxxxxxx Station: The property is subject to a junior
mortgage held by the Housing and Community Services Department of the State of
Oregon in the maximum amount of $500,000, which is subordinated to the mortgage
loan and is subject to a standstill agreement.
Loan No. 4 St. Xxxxx Xxxxx: The partners of the borrower have made
$12,293,833.61 in unsecured loans (the "Partner Loans") to the borrower.
Payments on the Partner Loans are only to be made out of excess cash flow after
all payments under the mortgage loan are made. Additionally, the borrower is not
permitted to obtain any further loans from its partners until the mortgage loan
is paid in full.
Representation No. 35: Due on Sale
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Loan Xx. 0, 00-000 Xxxxxxx Xxxxxx: Future mezzanine financing is permitted,
subject to certain conditions, including: (i) immediately following the closing
of such mezzanine loan, LTV based on the mortgage loan and the mezzanine loan
will be no greater than 80%, and (ii) immediately following the closing of such
mezzanine loan, DSCR based on the mortgage loan and the mezzanine loan would not
be less than 1.10x.
Loan No. 5, AT&T Tower: Further mezzanine financing is permitted subject to the
satisfaction of certain conditions, including that immediately following the
closing of such mezzanine loan, LTV based on the mortgage loan and the mezzanine
loan will be no greater than 74%.
Loan Xx. 00, Xxxxxxxxxx X: Future mezzanine Financing is permitted, subject to
certain conditions, including: (i) immediately following the closing of such
mezzanine loan, LTV based on the mortgage loan and the mezzanine loan will be no
greater than 80%, and (ii) immediately following the closing of such mezzanine
loan, DSCR based on the mortgage loan and the mezzanine loan would not be less
than 1.15x.
Xxxx Xx. 00, Xxx Xxxx Xxxxx: Future mezzanine Financing is permitted up to
$600,000 for the addition of the Planet Fitness building that will be built on
the mortgaged property, subject to certain conditions, including: (i)
immediately following the closing of such mezzanine loan, LTV ratio based on the
mortgage loan and the mezzanine loan will be no greater than 75%, and (ii)
immediately following the closing of such mezzanine loan, DSCR based on the
mortgage loan and the mezzanine loan would not be less than 1.25x.
Loan Xx. 000, Xxxxxxx Xxx - Xxxxxxxxx: Future mezzanine financing is permitted,
subject to certain conditions, including: (i) immediately following the closing
of such mezzanine loan, LTV based on the mortgage loan and the mezzanine loan
will be no greater than 55%, and (ii) immediately following the closing of such
mezzanine loan, DSCR based on the mortgage loan and the mezzanine loan would not
be less than 1.65x.
Loan Xx. 0, Xxxxxxxx Xxxx Technical Center: Future mezzanine financing is
permitted, subject to certain conditions, in a principal amount that, when added
to the mortgage loan, will not exceed LTV of 78%, from a lender satisfactory to
the lender; provided that the combined DSCR is at least 1.35x.
Representation No. 36: Non-Recourse Exceptions
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Loan No. 2,RREEF Portfolio: The recourse obligations are not to a natural
person, but are rather to SPE's, which are owned by RREEF and Bainbridge
Companies LLC.
Loan No. 6, ICW Plaza: The recourse obligations are not to a natural person, but
are rather to American Assets, Inc.
Loan No. 8, IVY MHP - Tallowwood Lsles: The recourse obligations are not to a
natural person, but are rather to National Home Communities, LLC.
Loan No. 9, IVY MHP - Kissimmee Gardens: The recourse obligations are not to a
natural person, but are rather to National Home Communities, LLC.
Loan Xx. 00, XXX XXX - Xxxxxxx Xxxx Xxxxx: The recourse obligations are not to a
natural person, but are rather to National Home Communities, LLC.
Loan Xx. 00, XXX XXX - Xxxxx Xxxx Villas: The recourse obligations are not to a
natural person, but are rather to National Home Communities, LLC.
Loan Xx. 00, Xxxxxxxxx X: The recourse obligations are not to a natural person,
but are rather to Normandy Real Estate Fund Inc.
Representation No. 40: Single Purpose Entity
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Loan No. 30, Turlock Cinema Center: The borrower is comprised of eight tenants
in common, of which only Turlock Cinema Center, LLC is an SPE but the loan
documents require that TIC's be rolled up into Turlock Cinema Center, LLC on or
before March 31, 2009.
Loan Xx. 0, Xxxxxxxx Xxxx Technical Center: The borrower is not an SPE.
Representation No. 44: Terrorism Insurance
Loan Xx. 0, 00-000 Xxxxxxx Xxxxxx: The premium amount may not exceed $200,000
(increased by CPI on each renewal).
Loan No. 2, RREEF Portfolio: The premium amount may not exceed $300,000.
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
IVY MHP - Tallowood Isles
IVY MHP - Kissimmee Gardens
IVY MHP - Paddock Park South
IVY MHP - Shady Road Villas
LV Portfolio - Pecos XxXxxx Office Building
LV Portfolio - White Sands Retail Building
EXHIBIT 3
PURCHASE PRICE
Purchase Price $846,772,570
Accrued Interest $3,845,827
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Total $850,618,397
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of March 1, 2007 (the "Mortgage Loan
Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this 29th day of March, 2007.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
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Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
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Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
[ ]
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[ ]
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[ ]
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Attention: [ ]
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LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq.
[ ]
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[ ]
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[ ]
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Attention: [ ]
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LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its
capacity as Seller, having an address of 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx (the "Seller"), being duly empowered and
authorized to do so, does hereby make, constitute and appoint [_________],
having an address of [___________], Attention: [_________] (the "General Master
Servicer"), LNR Partners, Inc., having an address of 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx and Xxxxxx X.
Xxxxxx III, Esq. (the "General Special Servicer") and [__________], having an
address of [______________], Attention: [__________] (the "Trustee") as the true
and lawful attorneys-in-fact for the undersigned, in its name, place and stead,
and for its use and benefit:
1. To empower the Trustee, the General Master Servicer and, in the
event of the failure or incapacity of the Trustee and the General Master
Servicer, General the Special Servicer, to submit for recording, at the expense
of the Seller, any mortgage loan documents required to be recorded as described
in the Pooling and Servicing Agreement, dated as of March 1, 2007 (the "Pooling
and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as Depositor,
the General Master Servicer, the General Special Servicer, NCB, FSB, as NCB
Master Servicer, National Consumer Cooperative Bank, as Co-op Special Servicer
and the Trustee, as Trustee, Paying Agent and Certificate Registrar with respect
to the Trust and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned
exercise of power.
3. This instrument is to be construed and interpreted as a limited
power of attorney. The enumeration of specific items, rights, acts or powers
herein is not intended to, nor does it give rise to, and it is not intended to
be construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted
shall commence and be in full force and effect on the date hereof and such
rights, powers and authority shall remain in full force and effect until the
termination of the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this [__] day of
March 2007.
Witnessed by: XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By:
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Print Name: Name:
Title:
STATE OF )
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COUNTY OF )
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On __________________________, before me, a Notary Public in and for said
county, personally appeared ________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person acted and executed the instrument.
Witness my hand and official seal.
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Commission Expires:
