MERRILL MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 30, 2007
(this "Agreement"), is entered into between Xxxxxxx Xxxxx Mortgage Lending, Inc.
(the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of April 1, 2007 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Wachovia Bank, National
Association and Xxxxx Fargo Bank, National Association as master servicers
(each, in such capacity, a "Master Servicer"), LNR Partners, Inc. as special
servicer (the "Special Servicer") and LaSalle Bank National Association as
trustee (the "Trustee"). Capitalized terms used but not defined herein
(including the schedules attached hereto) have the respective meanings set forth
in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of March 30, 2007 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), Credit Suisse
Securities (USA) LLC ("Credit Suisse") and Xxxxxx, Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx"); Xxxxxxx Xxxxx, Countrywide Securities, Credit Suisse and
Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (such Certificates, the
"Publicly-Offered Certificates"). The Purchaser has also entered into a
Certificate Purchase Agreement, dated as of March 30, 2007 (the "Certificate
Purchase Agreement"), with Xxxxxxx Xxxxx for itself and as representative of
Countrywide Securities (together in such capacity, the "Initial Purchasers"),
whereby the Purchaser will sell to the Initial Purchasers all of the remaining
Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $1,387,191,868 (the "Merrill Mortgage Loan
Balance") (subject to a variance of plus or minus
5.0%) as of the close of business on the Cut-off Date, after giving effect to
any payments due on or before such date, whether or not such payments are
received. The Merrill Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $2,145,926,360 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take place on April
12, 2007 or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 101.48174% of the
Merrill Mortgage Loan Balance as of the Cut-off Date, plus (ii) $2,430,680.56,
which amount represents the amount of interest accrued on the Merrill Mortgage
Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Servicing Rights Purchase Agreement (as defined in Section
6(a)(iii) hereof)), together with all of the Seller's right, title and interest
in and to the proceeds of any related title, hazard, primary mortgage or other
insurance proceeds. The Mortgage Loan Schedule, as it may be amended, shall
conform to the requirements set forth in this Agreement and the Pooling and
Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on or before the
Closing Date, the documents and instruments specified below with respect to each
Mortgage Loan that are Specially Designated Mortgage Loan Documents and (ii) on
or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a
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"Mortgage File"). All Mortgage Files so delivered will be held by the Trustee in
escrow for the benefit of the Seller at all times prior to the Closing Date. The
Mortgage File with respect to each Mortgage Loan that is a Serviced Trust
Mortgage Loan shall contain the following documents:
(i) (A) the original executed Mortgage Note for the subject
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office or, in the case of a MERS Mortgage Loan (as defined below), an
original or a copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the
applicable recording office) with evidence of recording indicated thereon
or certified by the applicable recording office, with language noting the
presence of the MIN (as defined below) of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office or, in the case of a MERS Mortgage Loan, an
original or copy of any related Assignment of Leases (if such item is a
document separate from the Mortgage), together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon or certified by the applicable recording office, with
language noting the presence of the MIN of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name and address (if the assignment is
delivered in blank) and any missing recording information or a certified
copy of that assignment as sent for recording), of (a) the Mortgage, (b)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6 (or, in the case of a Loan Combination, in
favor of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-6,
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Commercial Mortgage Pass-Through Certificates, Series 2007-6, and in its
capacity as lead lender on behalf of the holder(s) of the related
Non-Trust Loan(s)), or in blank or, in the case of a MERS Mortgage Loan,
evidence from MERS indicating the Trustee's ownership of such Mortgage
Loan on the MERS(R) System and the Trustee as the beneficiary of the
assignment(s) of (x) the Mortgage, (y) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (z) any other
recorded document relating to such Mortgage Loan otherwise included in the
Mortgage File;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above) in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6 (or,
in the case of a Loan Combination, in favor of LaSalle Bank National
Association, as trustee for the registered holders of ML-CFC Commercial
Mortgage Trust 2007-6, Commercial Mortgage Pass-Through Certificates,
Series 2007-6, and in its capacity as lead lender on behalf of the holder
of the related Non-Trust Loan(s)), or in blank or, in the case of a MERS
Mortgage Loan (to the extent not already evidenced pursuant to clause (iv)
above), evidence from MERS indicating the Trustee's ownership of the
Mortgage Loan on the MERS(R) System and the Trustee as beneficiary of the
assignment(s) of unrecorded documents related to the Mortgage Loan;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement assignment,
in form suitable for filing in favor of LaSalle Bank National Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2007-6, Commercial Mortgage Pass-Through Certificates, Series 2007-6, as
assignee (or, in the case of a Loan Combination, in favor of LaSalle Bank
National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-6, Commercial Mortgage Pass-Through
Certificates, Series 2007-6, and in its capacity as lead lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank or, in the
case of a MERS Mortgage Loan, evidence from
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MERS indicating the Trustee's ownership of such Mortgage Loan on the
MERS(R) System and the Trustee as the beneficiary of any effective UCC
Financing Statement in favor of the Seller on record with the applicable
public office for UCC Financing Statements;
(ix) an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original from to the Trustee, but rather to the
applicable Master Servicer), in each case relating to the subject Mortgage
Loan;
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan Combination,
an original or a copy of the related Loan Combination Intercreditor
Agreement.
The Mortgage File with respect to the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan shall contain the following documents:
(i) the original executed Mortgage Note for such Mortgage Loan
including any power of attorney related to the execution thereof (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
LaSalle Bank National Association, as trustee for the registered holders
of ML-CFC Commercial Mortgage Trust 2007-6, Commercial Mortgage
Pass-Through Certificates, Series 2007-6, or in blank;
(ii) an executed copy of the Xxxxx Xxxxxx Village and Stuyvesant
Town Intercreditor Agreement; and
(iii) an executed copy of the WBCMT-C30 Pooling and Servicing
Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
For purposes of this Section 2(c):
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"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS Mortgage Loan" means any Mortgage Loan registered with MERS on
the MERS(R) System, as to which MERS is acting as mortgagee, solely as nominee
for the Seller and its successors and assigns, which Mortgage Loans are
identified on Schedule III hereto.
"MERS(R) System" means the system of recording transfers of
mortgages electronically maintained by MERS.
"MIN" means the mortgage identification number on the MERS(R) System
for any MERS Mortgage Loan.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 180 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Trustee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
If, on the Closing Date as to any MERS Mortgage Loan, the Seller
does not deliver written evidence of the Trustee's ownership of such Mortgage
Loan on the MERS(R) System showing the Trustee as a beneficiary of the
assignment referred to in each of clause (iv) and (v) of the definition of
"Mortgage File" or the UCC Financing Statements referred to in clause (viii) of
the definition of "Mortgage File", the Seller may satisfy the delivery
requirements of this Agreement and Section 2.01(b) of the Pooling and Servicing
Agreement by delivering
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such evidence of ownership within 90 days following the Closing Date; provided
that, during such time, the Seller shall execute any documents requested by the
Master Servicer or the Special Servicer with respect to such MERS Mortgage Loan
that, in the reasonable discretion of the Master Servicer or the Special
Servicer (exercised in accordance with the Servicing Standard), are necessary to
evidence the Trustee's ownership of, or are otherwise required for an immediate
servicing need with respect to, such Mortgage Loan.
(e) All such other relevant documents and records that (a) relate
to the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the applicable Master Servicer (or, at the direction of such Master Servicer, to
the appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due diligence analyses, credit committee briefs or
memoranda or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for each Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
applicable Master Servicer, the initial data (as of the Cut-off Date or the most
recent earlier date for which such data is available) contemplated by the CMSA
Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the
Seller has taken all necessary corporate action to authorize the
delivery and performance of this Agreement by it, and has the power and
execution, authority to execute, deliver and perform this Agreement and
all transactions contemplated hereby.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for the Seller to
perform its duties and obligations under this Agreement, or (C) constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party or
by which the Seller is bound, which default might have consequences that
would, in the Seller's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Seller or its properties or materially and adversely affect its
performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this
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Agreement by the Seller, results or will result in the creation or
imposition of any lien on any of the Seller's assets or property that
would have a material adverse effect upon the Seller's ability to perform
its duties and obligations under this Agreement or materially impair the
ability of the Purchaser to realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by the
Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB. For purpose of this Agreement, "Regulation AB"
shall mean Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7,
2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller receives written notice of a Document Defect
or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, then the Seller shall, not later than 90 days
from receipt of such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from
any party to the Pooling and Servicing Agreement discovering such Document
Defect or Breach, provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach
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materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein, cure such Document Defect or
Breach, as the case may be, in all material respects, which shall include
payment of losses and any Additional Trust Fund Expenses associated therewith
or, if such Document Defect or Breach (other than omissions due solely to a
document not having been returned by the related recording office) cannot be
cured within such 90-day period, (i) repurchase the affected Mortgage Loan
(which, for the purposes of this clause (i), shall include an REO Loan) at the
applicable Purchase Price (as defined in the Pooling and Servicing Agreement)
not later than the end of such 90-day period or (ii) substitute a Qualified
Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes of
this clause (ii), shall include an REO Loan) not later than the end of such
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the applicable Master Servicer for deposit into its Collection
Account any Substitution Shortfall Amount in connection therewith; provided,
however, that, unless the Document Defect or Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, if such Document Defect or Breach is
capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Trustee setting forth the reason(s) such Document Defect or
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Document Defect or Breach will be cured
within the additional 90-day period; and provided, further, that no Document
Defect (other than with respect to the Specially Designated Mortgage Loan
Documents) shall be considered to materially and adversely affect the interests
of the Certificateholders or the value of the related Mortgage Loan unless the
document with respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending and claim asserted by any Mortgagor
or third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien or any collateral securing the Mortgage Loan or for any
immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans, determined at the time of repurchase or
substitution,
10
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller shall not be greater than the weighted average loan-to-value ratio for
all such Crossed Loans, including the affected Crossed Loan determined at the
time of repurchase or substitution, based upon an appraisal obtained by the
Special Servicer at the expense of the Seller; provided, that if such debt
service coverage and loan-to-value criteria are satisfied, any other Crossed
Loan (that is not the Crossed Loan directly affected by the subject Document
Defect or Breach), shall be released from its cross-collateralization and
cross-default provision so long as such Crossed Loan (that is not the Crossed
Loan directly affected by the subject Document Defect or Breach) is held in the
Trust Fund; and provided, further, that the repurchase or replacement of less
than all such Crossed Loans and the release of any Crossed Loan from a
cross-collateralization and cross-default provision shall be further subject to
(i) the delivery by the Seller to the Trustee, at the expense of the Seller, of
an Opinion of Counsel to the effect that such release would not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions and (ii) the consent of the
Controlling Class Representative (if one is then acting), which consent shall
not be unreasonably withheld or delayed. In the event that one or more of such
other Crossed Loans satisfy the aforementioned criteria, the Seller may elect
either to repurchase or substitute for only the affected Crossed Loan as to
which the related Document Defect or Breach exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Loan Group. All
documentation relating to the termination of the cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at the expense
of the Seller and, where required, with the consent of the related Mortgagor.
For a period of two years from the Closing Date, so long as there remains any
Mortgage File relating to a Mortgage Loan as to which there is any uncured
Document Defect or Breach known to the Seller that existed as of the Closing
Date, the Seller shall provide, once every 90 days, the officer's certificate to
the Trustee described above as to the reason(s) such Document Defect or Breach
remains uncured and as to the actions being taken to pursue cure; provided,
however, that, without limiting the effect of the foregoing provisions of this
Section 3(c), if such Document Defect or Breach shall materially and adversely
affect the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to the second and third provisos in the sole
sentence of the preceding paragraph), the Seller shall in all cases on or prior
to the second anniversary of the Closing Date either cause such Document Defect
or Breach to be cured or repurchase or substitute for the affected Mortgage Loan
(for the avoidance of doubt, the foregoing two-year period shall not be deemed
to be a time limitation on the Seller's right to cure a Document Defect as set
forth in this Section 3). The delivery of a commitment to issue a policy of
lender's title insurance as described in representation 8 set forth on Schedule
I hereto in lieu of the delivery of the actual policy of lender's title
insurance shall not be considered a Document Defect or Breach with respect to
any Mortgage File if such actual policy of insurance is delivered to the Trustee
or a Custodian on its behalf not later than the 180th day following the Closing
Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
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If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies or some other mutually agreed
upon accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents, or, if the related
Mortgage Loan documents do not so provide, then on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan is modified to terminate the related cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Trustee an Opinion of
Counsel that such modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee or the Trust
Fund in connection with such release, (ii) the remaining Mortgaged Property(ies)
satisfy the requirements, if any, set forth in the Mortgage Loan documents and
the Seller provides an opinion of counsel to the effect that such release would
not cause either of REMIC I or REMIC II to fail to qualify as a REMIC under the
Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller
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shall be deemed to have cured the breach of representation 30 in all respects.
To the extent any fees or expenses that are the subject of a cure by the Seller
are subsequently obtained from the related Mortgagor, the cure payment made by
the Seller shall be returned to the Seller. Notwithstanding the prior provisions
of this paragraph, the Seller, acting in its sole discretion, may effect a
repurchase or substitution (in accordance with the provisions of this Section
3(c) setting forth the manner in which a Mortgage Loan may be repurchased or
substituted) of a Mortgage Loan, as to which representation 30 set forth on
Schedule I has been breached, in lieu of paying the costs and expenses that were
the subject of the breach of representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the applicable Master Servicer's
Collection Account, and, if applicable, the delivery of the Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
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(f) If, upon any payment in full with respect to any MERS
Mortgage Loan, none of the Trustee, the Master Servicer or any Sub-Servicer of
such Mortgage Loan is registered with MERS and is unable to reflect the release
of the related Mortgage on the MERS(R) System, the Seller shall take all
necessary action to reflect the release of such Mortgage on the MERS(R) System
and shall take such other actions as are necessary to enable the Master Servicer
and the Trustee to comply with the provisions of Section 3.10 of the Pooling and
Servicing Agreement and any other provisions relating to the release of the
Mortgage Loan or the related Mortgage File.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for the Purchaser to perform its duties
and obligations under this Agreement or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound, which
default might have consequences that would, in the Purchaser's reasonable and
good faith judgment, materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to
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the execution of this Agreement or the performance by the Purchaser of its
obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein,or which would be likely to impair materially the ability of
the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP on
the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the applicable Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and such Master Servicer pursuant to Section 2 of this Agreement;
15
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
(f) One or more letters from the independent accounting firm of
Ernst & Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus (as defined in Section 6(d) of this Agreement) and Prospectus
Supplement (as defined in Section 6(d) of this Agreement), respectively, shall
have been delivered; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of March 30, 2007,
among the Seller, Countrywide Commercial Real Estate Finance, Inc., the
Purchaser, the Underwriters and the Initial Purchasers.
Both parties agree to use their best reasonable efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the agreement(s) pursuant to which the servicing rights with
respect to the Mortgage Loans are being sold to the applicable Master Servicer
(such agreement(s), individually or collectively, as the case may be, the
"Servicing Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
16
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Free Writing Prospectus and nothing has come to his/her
attention that leads him/her to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage
Loans or omitted or omit to state therein a material fact necessary in order to
make the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his/her attention that leads him/her to
believe that the Specified Portions of the Prospectus Supplement, as of the date
of the Prospectus Supplement or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omit to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that leads him/her to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 to the Free Writing Prospectus, entitled "Certain
Characteristics of the Mortgage Loans" (insofar as the information contained in
Annex A-1 relates to the Mortgage Loans sold by the Seller hereunder), Annex A-2
to the Free Writing Prospectus, entitled "Certain Statistical Information
Regarding the Mortgage Loans" (insofar as the information contained in Annex A-2
relates to the Mortgage Loans sold by the Seller hereunder), Annex B to the Free
Writing Prospectus entitled "Certain Characteristics Regarding Multifamily
Properties" (insofar as the information contained in Annex B relates to the
Mortgage Loans sold by the Seller hereunder), Annex C to the Free Writing
Prospectus, entitled "Preliminary Structural and Collateral Term Sheet" (insofar
as the information contained in Annex C relates to the Mortgage Loans sold by
the Seller hereunder), the CD-ROM which accompanies the Free Writing Prospectus
(insofar as such CD-ROM is consistent with Annex X-0, Xxxxx X-0 and/or Annex B),
and the following sections of the Free Writing Prospectus (only to the extent
that any such information relates to the Seller or the Mortgage Loans sold by
the Seller hereunder and exclusive of any statements in such sections that
purport to describe the servicing and administration provisions of the Pooling
and Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool" and "Transaction
Participants--The Sponsors" and "Affiliations and Certain Relationships and
Related Transactions".
17
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 to the Prospectus Supplement, entitled "Certain Characteristics of
the Mortgage Loans" (insofar as the information contained in Annex A-1 relates
to the Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Prospectus
Supplement, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex B to the Prospectus
Supplement entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder); Annex C to the Free Writing Prospectus, entitled
"Preliminary Structural and Collateral Term Sheet" (insofar as the information
contained in Annex C relates to the Mortgage Loans sold by the Seller
hereunder), the CD-ROM which accompanies the Free Writing Prospectus (insofar as
such CD-ROM is consistent with Annex X-0, Xxxxx X-0 and/or Annex B), and the
following sections of the Free Writing Prospectus (only to the extent that any
such information relates to the Seller or the Mortgage Loans sold by the Seller
hereunder and exclusive of any statements in such sections that purport to
describe the servicing and administration provisions of the Pooling and
Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool" and "Transaction
Participants--The Sponsors" and "Affiliations and Certain Relationships and
Related Transactions"..
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated March
19, 2007 (the "March 2007 Free Writing Prospectus"), and relating to the
Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum
dated March 30, 2007, and relating to the Private Certificates;
"Prospectus" means the prospectus dated March 19, 2007.
"Prospectus Supplement" means the prospectus supplement dated March
30, 2007, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means March 30, 2007, at 2:15 p.m.
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws of the Seller, and (iii) an original or a copy of a
certificate of good standing of the Seller issued by the State of Delaware not
earlier than 30 days prior to the Closing Date;
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(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the applicable Master Servicer's Collection
Account, the Distribution Account or, if established, the REO Account whether in
the form of cash, instruments, securities or other property; (iii) the
assignment to the Trustee of the interest of the Purchaser as contemplated by
Section 1 of this Agreement shall be deemed to be an assignment of any security
interest created hereunder; (iv) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes, and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be possession by the secured party
for purposes of perfecting the security interest pursuant to Section 9-313 of
the UCC of the applicable jurisdiction; and (v) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Seller and the
19
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. The Seller does hereby consent to the filing by the
Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser any disclosure information relating to
any event, specifically relating to the Seller, reasonably determined in good
faith by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form
10-K by the Trust Fund (in formatting reasonably appropriate for inclusion in
such form) insofar as such disclosure is required under Item 1117 or 1119 of
Regulation AB or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts
to deliver proposed disclosure language relating to any event, specifically
relating to the Seller, described under Item 1117 or 1119 of Regulation AB or
Item 1.03 to Form 8-K to the Purchaser as soon as reasonably practicable after
the Seller becomes aware of such event and in no event more than two (2)
business days following the occurrence of such event if such event is reportable
under Item 1.03 to Form 8-K. The obligation of the Seller to provide the above
referenced disclosure materials in any fiscal year of the Trust will terminate
upon the Trustee's filing a Form 15 with respect to the Trust as to that fiscal
year in accordance with Section 8.16 of the Pooling and Servicing Agreement or
the reporting requirements with respect to the Trust under the Securities
Exchange Act of 1934, as amended (the "1934 Act") have otherwise automatically
suspended. The Seller hereby acknowledges that the information to be provided by
it pursuant to this Section 9 will be used in the preparation of reports meeting
the reporting requirements of the Trust under Section 13(a) and/or Section 15(d)
of the 1934 Act.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
either by certified mail (return receipt requested) or by courier service (proof
of delivery requested) to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto, or as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
20
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters
21
(as intended third party beneficiaries hereof), the Initial Purchasers (also as
intended third party beneficiaries hereof) and their permitted successors and
assigns. This Agreement is enforceable by the Underwriters, the Initial
Purchasers and the other third party beneficiaries hereto in all respects to the
same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
MLML MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Global Commercial Real Estate
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxx
with a copy to:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Global Commercial Real Estate
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director of CMBS Securitizations
and with a copy to:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global Commercial Real Estate in the Office of
the General Counsel
Purchaser:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
and
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement; and provided further that, if the related
Mortgage and/or assignment of Assignment of Leases has been recorded in the name
of MERS or its designee, no assignment of Mortgage and/or Assignment of Leases
in favor of the Trustee is required to be prepared or delivered and instead, the
Seller shall take all actions as are necessary to cause the Trust to be shown as
the owner of the Mortgage Loan on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained. Each Mortgage Note is, or shall be as of the Closing Date,
properly endorsed to the Purchaser or its designee and each such endorsement is,
or shall be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in March 2007, without giving effect to any applicable
grace period, nor was any such payment 30
days or more delinquent since the date of origination of any Mortgage Loan,
without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien upon the related Mortgaged Property, prior to
all other liens and encumbrances, and there are no liens and/or encumbrances
that are pari passu with the lien of such Mortgage, in any event subject,
however, to the following (collectively, the "Permitted Encumbrances"): (a) the
lien for current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment binding upon the title insurer); (c) exceptions and
exclusions specifically referred to in such lender's title insurance policy (or,
if not yet issued, referred to in a pro forma title policy or "marked-up"
commitment binding upon the title insurer); (d) other matters to which like
properties are commonly subject; (e) the rights of tenants (as tenants only)
under leases (including subleases) pertaining to the related Mortgaged Property;
(f) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the
lien of the Mortgage for another Mortgage Loan contained in the same Crossed
Group; (g) if the related Mortgaged Property consists of one or more units in a
condominium, the related condominium declaration; and (h) the rights of the
holder of any Non-Trust Loan that is part of a related Loan Combination to which
any such Mortgage Loan belongs. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee (or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant
Town Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee) is in recordable
form (but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and constitutes
a legal, valid, binding and, subject to the limitations and exceptions set forth
in representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee (or, in the case of the Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee);
provided that, if the related Mortgage and/or Assignment of Leases has been
recorded in the name of MERS or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee is required to be
prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein,
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except for Permitted Encumbrances and except for the holder of any Non-Trust
Loan that is part of a related Loan Combination to which any such Mortgage Loan
belongs, and except that a license may have been granted to the related
Mortgagor to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property so long as no event of default has
occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee (or, in
the case of the Xxxxx Xxxxxx Village and Stuyvesant Town Trust Mortgage Loan, in
favor of the WBCMT-C30 Trustee) is in recordable form (but for insertion of the
name and address of the assignee and any related recording information which is
not yet available to the Seller), and constitutes a legal, valid, binding and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee (or, in the case of the Xxxxx Xxxxxx Village and Stuyvesant Town
Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee); provided that, if the
related Mortgage and/or Assignment of Leases has been recorded in the name of
MERS or its designee, no assignment of Mortgage and/or assignment of Assignment
of Leases in favor of the Trustee is required to be prepared or delivered and
instead, the Seller shall take all actions as are necessary to cause the Trust
to be shown as the owner of the Mortgage Loan on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. The related Mortgage or related Assignment of
Leases, subject to applicable law, provides for the appointment of a receiver
for the collection of rents or for the related mortgagee to enter into
possession of the related Mortgaged Property to collect the rents or provides
for rents to be paid directly to the related mortgagee, if there is an event of
default beyond applicable notice and grace periods. Except for the holder of the
related Non-Trust Loan with respect to any Mortgage Loan that is part of a Loan
Combination, no person other than the related Mortgagor owns any interest in any
payments due under the related leases on which the Mortgagor is the landlord,
covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Mortgagor has not been released from
its obligations under such Mortgage, in whole or in material part. With respect
to each Mortgage Loan, since the later of (a) March 5, 2007 and (b) the closing
date of such Mortgage Loan, the Seller has not executed any written instrument
that (i) impaired, satisfied, canceled, subordinated or rescinded such Mortgage
Loan, (ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance of
doubt, the preceding sentence does not relate to any release of escrows by the
Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering
I-3
consultant in connection with the origination of such Mortgage Loan, the related
Mortgaged Property is, to the Seller's knowledge, in good repair and free and
clear of any damage that would materially and adversely affect its value as
security for such Mortgage Loan (except in any such case where an escrow of
funds, letter of credit or insurance coverage exists sufficient to effect the
necessary repairs and maintenance). As of the date of origination of the
Mortgage Loan, there was no proceeding pending for the condemnation of all or
any material part of the related Mortgaged Property. As of the Closing Date, the
Seller has not received notice and has no knowledge of any proceeding pending
for the condemnation of all or any material portion of the Mortgaged Property
securing any Mortgage Loan. As of the date of origination of each Mortgage Loan
and, to the Seller's knowledge, as of the date hereof, (a) none of the material
improvements on the related Mortgaged Property encroach upon the boundaries and,
to the extent in effect at the time of construction, do not encroach upon the
building restriction lines of such property, and none of the material
improvements on the related Mortgaged Property encroached over any easements,
except, in each case, for encroachments that are insured against by the lender's
title insurance policy referred to in representation 8 below or that do not
materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee (or, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee) as sole
insured without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for whether, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available) that, (a) the related Mortgaged Property has access
to a public road, and (b) the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
I-4
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee (in the case of the Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan, subject to the rights of the WBCMT-C30
Trustee), pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are or will become payable to such
trustee by the Seller, the Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen meeting ASTM standards or an update of a previously conducted
environmental site assessment (which update may have been performed pursuant to
a database update), was performed by an independent third-party environmental
consultant (licensed to the extent required by applicable state law) with
respect to each Mortgaged Property securing a Mortgage Loan in connection with
the origination of such Mortgage Loan, (b) the report of each such assessment,
update or screen, if any (an "Environmental Report"), is dated no earlier than
(or, alternatively, has been updated within) twelve (12) months prior to the
date hereof, (c) a copy of each such Environmental Report has been delivered to
the Purchaser, and (d) either: (i) no such Environmental Report, if any, reveals
that as of the date of the report there is a material violation of applicable
environmental laws with respect to any known circumstances or conditions
relating to the related Mortgaged Property; or (ii) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not been subsequently remediated in
all material respects, then one or more of the following are true--(A) one or
more parties not related to the related Mortgagor and collectively having
I-5
financial resources reasonably estimated to be adequate to cure the violation
was identified as the responsible party or parties for such conditions or
circumstances, and such conditions or circumstances do not materially impair the
Value of the related Mortgaged Property, (B) the related Mortgagor was required
to provide additional security reasonably estimated to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Mortgagor, or other responsible party, provided a "no further action"
letter or other evidence that would be acceptable to a reasonably prudent
commercial mortgage lender, that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such conditions or circumstances, (D) such conditions
or circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation, (E) the expenditure of funds reasonably estimated
to be necessary to effect such remediation is not greater than 2% of the
outstanding principal balance of the related Mortgage Loan, (F) there exists an
escrow of funds reasonably estimated to be sufficient for purposes of effecting
such remediation, (G) the related Mortgaged Property is insured under a policy
of insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (H) a responsible party provided a guaranty or indemnity to the
related Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had financial resources reasonably
estimated to be adequate to cure the subject violation in all material respects.
To the Seller's actual knowledge and without inquiry beyond the related
Environmental Report, there are no significant or material circumstances or
conditions with respect to such Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Mortgagor questionnaire
delivered to the Seller in connection with the issue of any related
environmental insurance policy, if applicable, that would require investigation
or remediation by the related Mortgagor under, or otherwise be a material
violation of, any applicable environmental law. The Mortgage Loan documents for
each Mortgage Loan require the related Mortgagor to comply in all material
respects with all applicable federal, state and local environmental laws and
regulations. Each of the Mortgage Loans identified on Annex C hereto is covered
by a secured creditor environmental insurance policy and each such policy is
noncancellable during its term, is in the amount at least equal to 125% of the
principal balance of the Mortgage Loan, has a term ending no sooner than the
date which is five years after the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials. The related
Mortgagor (or affiliate thereof) has agreed to indemnify, defend and hold the
Seller and its successors and assigns harmless from and against any and all
losses, liabilities, damages, injuries, penalties, fines, out-of-pocket expenses
and claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party
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resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement basis,
I-7
(2) the outstanding principal balance of such Mortgage Loan, and (3) the maximum
amount of insurance available under the applicable federal flood insurance
program. Each Mortgaged Property located in California or in seismic zones 3 and
4 is covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. Each Mortgaged Property located within
Florida or within 25 miles of the coast of North Carolina, South Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the insurable
replacement cost of the improvements located on such Mortgaged Property (less
physical depreciation). All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without at least 10 days'
prior written notice to the mortgagee; and no such notice has been received,
including any notice of nonpayment of premiums, that has not been cured.
Additionally, for any Mortgage Loan having a Cut-off Date Balance equal to or
greater than $20,000,000, the insurer for all of the required coverages set
forth herein has a claims paying ability or financial strength rating from S&P
or Xxxxx'x of not less than A-minus (or the equivalent), or from A.M. Best
Company of not less than "A-minus: V" (or the equivalent) and, if rated by
Fitch, of not less than "A-" from Fitch (or the equivalent). With respect to
each Mortgage Loan, the related Mortgage Loan documents require that the related
Mortgagor or a tenant of such Mortgagor maintain insurance as described above or
permit the related mortgagee to require insurance as described above. Except
under circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage Loan
documents for each Mortgage Loan provide that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage Loan documents may entitle the related Mortgagor to
any portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Mortgagor holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in representation
18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
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16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is
a debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related Fee Interest and
Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
I-9
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right
to hold and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to the
payment of the outstanding principal balance of the Mortgage Loan together
with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
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(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related monthly payment.
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22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
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27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Crossed Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (i) the satisfaction of certain legal and
underwriting requirements or (ii) the payment of a release price in connection
therewith; and provided, further, that certain Crossed Groups or individual
Mortgage Loans secured by multiple parcels may permit the related Mortgagor to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan documents provide that the
related Mortgagor is responsible for the payment of all reasonable costs and
expenses associated with defeasance incurred by the related mortgagee, including
Rating Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan documents provide that the related Mortgagor is responsible for
all reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
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33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement
for each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
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38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing or recording
of a UCC financing statement under applicable law). The related assignment of
such security interest (but for insertion of the name of the assignee and any
related information which is not yet available to the Seller) executed and
delivered in favor of the Trustee (or, in the case of the Xxxxx Xxxxxx Village
and Stuyvesant Town Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee)
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in representation 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee (or, in the case of the Xxxxx Xxxxxx Village and
Stuyvesant Town Trust Mortgage Loan, in favor of the WBCMT-C30 Trustee);
provided that, if the related security agreement and/or UCC Financing Statement
has been recorded in the name of MERS or its designee, no assignment of security
agreement and/or UCC Financing Statement in favor of the Trustee is required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. Notwithstanding any of the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing or recording of UCC
Financing Statements are required in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
I-15
41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly
I-16
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than 15 days from the applicable Due Date
or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan identified on Annex C as being covered by a
secured creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
I-17
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
REPRESENTATION #2- OWNERSHIP OF MORTGAGE LOAN
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 4 -LIEN; VALID ASSIGNMENT
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 5 - ASSIGNMENT OF LEASES AND RENTS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 6 -MORTGAGE STATUS; WAIVERS AND MODIFICATIONS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 8 - TITLE INSURANCE
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
loans, each of which is secured by the same mortgage
instrument and is cross-defaulted with the other.
The B-Note loan will not be part of the Trust Fund.
Only the right, title and interest of the Seller in the
mortgage loan identified on the Mortgage Loan Schedule
is being conveyed to the Purchaser.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
Only the right, title and interest of the Seller in the
mortgage loan identified on the Mortgage Loan Schedule
is being conveyed to the Purchaser.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 10 - MORTGAGE PROVISIONS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Fairfield Commons Borrower shall maintain insurance for losses resulting
from perils and acts of terrorism on terms (including
amounts) consistent with those required under Section
7.1(a) of the Loan Agreement at all times during the
term of the Loan as long as and to the extent that
terrorism insurance is commonly maintained for similarly
situated properties in the same geographic market as the
Property.
----------------------------------------------------------------------------------------------------------------------
Michigan Road The loan documents do not contain any provision that
expressly excuses the Mortgagor from obtaining and
maintaining insurance coverage for acts of
terrorism, however, note that with respect to the
portion of the mortgaged property demised to JC Penney
under the JC
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Penney Lease (and only for such time as the
JC Penney Lease is in full force and effect), Mortgagor
only has to obtain and maintain insurance for loss
resulting from perils and acts of terrorism on the
premises demised under the JC Penney Lease to the extent
that such insurance coverage is available at premiums
not to exceed $5,000 per annum.
----------------------------------------------------------------------------------------------------------------------
CVS, Dade City transaction The Mortgagor was excused from obtaining terrorism
insurance coverage at closing. However, upon request of
Lender, and provided Mortgagor is able to obtain such
coverage at a commercially reasonable price, which price
shall not exceed $10,000.00 per annum, Mortgagor shall
be required to obtain and maintain such terrorism
coverage.
----------------------------------------------------------------------------------------------------------------------
1001 Frontier The related Mortgage Loan Documents require the Borrower
to purchase terrorism insurance to the extent same is
available for no more than 250% of the cost as of the
date of closing.
----------------------------------------------------------------------------------------------------------------------
MSKP River Bridge, LLC; MSKP Springs The loan documents do not contain any provision that
Plaza, LLC; MSKP Oak Grove, LLC; MSKP expressly excuses the related Mortgagor from maintaining
Gateway, LLC; MSKP Xxxxxxx, LLC; MSKP terrorism insurance, however, the Loan Agreement caps
Casselberry Exchange, LLC; MSKP the annual terrorism insurance premium for each property
Orlando Square, LLC; and MSKP at $150,000. If the Mortgagor cannot obtain a "full
Ramblewood Square, LLC (each replacement cost" terrorism insurance policy for any
individually, and collectively, the Property for $150,000 or less, then it is only required
"LOAN A BORROWER") to maintain a policy for the greatest amount as can be
obtained for $150,000.
----------------------------------------------------------------------------------------------------------------------
MSKP Plaza Del Mar, LLC and MSKP Galt The loan documents do not contain any provision that
Ocean, LLC (each individually, and expressly excuses the related Mortgagor from maintaining
collectively, the "LOAN B BORROWER") terrorism insurance, however, the Loan Agreement caps
the annual terrorism insurance premium for each property
at $150,000. If the Mortgagor cannot obtain a "full
replacement cost" terrorism insurance policy for any
Property for $150,000 or less, then it is only required
to maintain a policy for the greatest amount as can
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
be obtained for $150,000
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The borrower is required to maintain terrorism
insurance, but is not required to pay annual premiums in
excess of 150% of the cost of terrorism insurance as of
the date of origination of the Mortgage Loan (subject to
CPI increases).
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 12 - ENVIRONMENTAL CONDITIONS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The "Environmental Compliance" section of the loan
agreement has been revised so as to: (a) limit the
representation that there is no asbestos on the Property
by adding the qualifier "requiring abatement or removal
pursuant to environmental statutes"; (b) limit the
representations, by adding the qualifier "to Borrower's
knowledge," that there are no threatened lawsuits or
that Borrower has waived any person's liability with
regard to hazardous material on the Property; and (c)
exclude from the Environmental Indemnification section
any duty of Borrower to indemnify Lenders from
"consequential, special or punitive damages" associated
with environmental problems with the Property.
Additionally, Borrower waived any liability of the
seller of the Property for environmental matters.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 14 - INSURANCE
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Michigan Road The mortgaged property must contain an "all-risk"
casualty insurance policy including coverage for acts of
terrorism, except with respect to terrorism coverage for
the premises demised to JC Penney under the JC Penney
Lease. With respect to the portion of the mortgaged
property demised to JC Penney under the JC Penney Lease
(and only for such
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
time as the JC Penney Lease is in full force and effect),
Mortgagor only has to obtain and maintain insurance for
loss resulting from perils and acts of terrorism on
the premises demised under the JC Penney Lease to the
extent that such insurance coverage is available at
premiums not to exceed $5,000 per annum.
----------------------------------------------------------------------------------------------------------------------
CVS, Dade City transaction The Mortgagor was excused from obtaining terrorism
insurance coverage at closing. However, upon request of
Lender, and provided Mortgagor is able to obtain such
coverage at a commercially reasonable price, which price
shall not exceed $10,000.00 per annum, Mortgagor shall
be required to obtain and maintain such terrorism
coverage.
----------------------------------------------------------------------------------------------------------------------
1001 Frontier The related Mortgage Loan Documents require the Borrower
to purchase terrorism insurance to the extent same is
available for no more than 250% of the cost as of the
date of closing.
----------------------------------------------------------------------------------------------------------------------
Arlington/International Place The all risk casualty policy is required to be the
replacement value.
----------------------------------------------------------------------------------------------------------------------
SouthPark Mall The all risk casualty policy is required to be the
replacement value. In addition, the SouthPark Mall has
provisions that permit the rating of certain insurance
companies to be less than "a-" from S&P in the event
that there is a syndicate of insurance companies.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The loan agreement provides that if the insurance is
provided by a syndicate of insurers, the coverage shall
be acceptable if: (i) the first layer of coverage is
provided by carriers rate "A-" or better from S&P; (ii)
60% (75% if there are four or fewer members in the
syndicate) of the aggregate limits under such policies
are provided by carriers with a minimum "A-" rating from
S&P and (iii) the S&P rating of the remaining carriers
must be at least "BBB".
The related loan agreement requires that the Borrower
carry insurance against loss or
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
damage by fire, casualty and other hazards included in an
"all-risk" coverage endorsement or its equivalent, with
such insurance to be written on a replacement cost basis,
covering the Property with a limit of not less than
$400,000,000 per loss. As to terrorism insurance
coverage, (A) during any period of the term of the Loan
that the Terrorism Risk Insurance Extension Act of 2005
("TRIEA") is in effect, if "acts of terrorism" or other
similar acts or events are hereafter excluded from
Borrower's comprehensive all risk insurance policy
(including business interruption, rent loss or similar
insurance coverage), Borrower shall obtain an endorsement
to such policy, or a separate policy insuring against all
"certified acts of terrorism" as defined by TRIEA and
"fire following", which for purposes of this Loan
Agreement shall mean actual replacement value of the
Property (exclusive of the Premises, footings and
foundations) with a waiver of depreciation and with a
limit of not less than $300,000,000 and (B) during any
period of the term of the Loan that TRIEA is not in
effect, if "acts of terrorism" or other similar acts or
events or "fire following" are hereafter excluded from
Borrower's comprehensive all risk insurance policy or
business interruption insurance coverage, Borrower shall
obtain an endorsement to such policy, or a separate
policy insuring against all such excluded acts or events,
to the extent such policy or endorsement is available, in
an amount determined by Lender in its reasonable
discretion (but in no event greater than the total
insurable value of the Mortgaged Property plus the
business interruption, rent loss or similar coverage)
required hereunder with a limit of not less than
$300,000,000; provided, that Borrower shall not be
required to pay annual premiums in excess of 150% of the
current cost of Terrorism insurance as increased by CPI.
----------------------------------------------------------------------------------------------------------------------
MSKP River Bridge, LLC; The loan documents do not contain any
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
MSKP Springs Plaza, LLC; MSKP Oak provision that expressly excuses the related Mortgagor
Grove, LLC; MSKP Gateway, LLC; from maintaining terrorism insurance, however, the Loan
MSKP Xxxxxxx, LLC; MSKP Casselberry Agreement caps the annual terrorism insurance premium for
Exchange, LLC; MSKP Orlando Square, each property at $150,000. If the Mortgagor cannot obtain
LLC; and MSKP Ramblewood Square, LLC a "full replacement cost" terrorism insurance policy for
(each individually, and collectively, any Property for $150,000 or less, then it is only
the "LOAN A BORROWER") required to maintain a policy for the greatest amount as
can be obtained for $150,000.
----------------------------------------------------------------------------------------------------------------------
MSKP Plaza Del Mar, LLC and MSKP Galt The loan documents do not contain any provision that
Ocean, LLC (each individually, and expressly excuses the related Mortgagor from maintaining
collectively, the "LOAN B BORROWER") terrorism insurance, however, the Loan Agreement caps
the annual terrorism insurance premium for each property
at $150,000. If the Mortgagor cannot obtain a "full
replacement cost" terrorism insurance policy for any
Property for $150,000 or less, then it is only required
to maintain a policy for the greatest amount as can be
obtained for $150,000
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The casualty insurance covering the Property has 100%
coinsurance, and does not have an agreed amount
endorsement. The coinsurance is mitigated by the
extended recovery endorsement, that provides for a
guaranteed replacement cost for the building; if the
building is not repaired or replaced the policy will pay
for the cost to demolish, clear the site, and the amount
that would be spent to replace the building with like
kind and quality.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 21 - NO EQUITY INTEREST, EQUITY PARTICIPATION OR CONTINGENT
INTEREST
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village Lenders have a $1,000,000,000 indirect equity investment
in the Borrower.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 22 - LEGAL PROCEEDINGS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village Tishman Speyer Properties, which is one of the sponsors
of the Loan, is subject to two class-action lawsuits
filed by the tenants of the Property (the "Lawsuit").
To the Seller's knowledge, as of the date that the
Mortgage Loan was originated, neither the borrowers nor
the sponsors are subject to any other litigation that
could have a material and adverse effect on the
Mortgaged Property, although there are numerous tenant
lawsuits against the Borrower.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 23 - OTHER MORTGAGE LOANS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
At any time during the period commencing on the due date
in November 2011 and ending on the due date in May 2013,
Borrower has the one-time right to obtain additional
pari passu mortgage financing and/or subordinate
mezzanine financing, in the aggregate amount of
$300,000,000, subject to certain terms and conditions
set forth in the loan documents.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 26 - LICENSES AND PERMITS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Trabuco Hills Shops Borrower has a post-closing obligation to obtain a
certificate of occupancy for the space at the Property
that is leased to La Famiglia Restaurant.
----------------------------------------------------------------------------------------------------------------------
00 Xxxxx'x Xxxxx No certificate of occupancy exists for the tenant
occupying the entire property. The property has been
operating for several years without the certificate of
occupancy. The loan is fully recourse to the guarantors
until the required certificate occupancy is received by
the lender.
----------------------------------------------------------------------------------------------------------------------
000-000 Xxxxx Xxxxxxx Xxxxx No certificate of occupancy is of record as the building
construction (1940s) predates the city's requirement for
a certificate of occupancy. In addition, the city has
confirmed that a certificate of occupancy is not
required for an existing building unless a special use
is being made of the building.
----------------------------------------------------------------------------------------------------------------------
Norcross Industrial Portfolio With respect to the Individual Property located at 0000
Xxxxxxx Xxxxx, Borrower is obligated to deliver evidence
to Lender (post closing) that the expired building
permit is properly closed out and any violation is
removed of record. Any losses Lender suffers as a
result of Borrower's failure to comply with the post
closing obligation will result in recourse liability to
Borrower and Guarantor.
----------------------------------------------------------------------------------------------------------------------
Virginia Beach Portfolio Due to the Virginia Beach municipality's lack of
cooperation and unresponsiveness, the Mortgagor was
unable to deliver to Lender all certificates of
occupancy for the Property. In the Loan Agreement,
Borrower represents and warrants that all certificates
of completion or occupancy required for the legal use,
occupancy and operation of the Property have been
obtained and are valid and in full force and effect.
The Mortgagor agreed to be personally liable for any
losses incurred by Lender as a result of the Mortgagor's
failure to obtain all certificates of occupancy for the
Property,
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
which liability is personally guaranteed by the guarantor.
In addition, the Mortgagor entered into a post-closing
agreement, pursuant to which the Mortgagor shall use its
best efforts to obtain all of the certificates of
occupancy and deliver them to the Lender.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 28 - RELEASES OF MORTGAGED PROPERTIES
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Radisson Milwaukee North Shore The loan documents permit a out parcel release for no
value subject to satisfaction of the conditions set
forth in the loan agreement.
----------------------------------------------------------------------------------------------------------------------
MSKP River Bridge, LLC; MSKP Springs Substitution of properties is permitted without
Plaza, LLC; MSKP Oak Grove, LLC; MSKP obtaining a rating agency confirmation that such
Gateway, LLC; MSKP Xxxxxxx, LLC; MSKP substitution will not result in a qualification,
Casselberry Exchange, LLC; MSKP downgrade or withdrawal of any of its then current
Orlando Square, LLC; and MSKP ratings of certificates.
Ramblewood Square, LLC (each
individually, and collectively, the
"Loan A Borrower")
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The Mortgage Loan permits the release of certain
development rights consisting of approximately 700,000
square feet of so called "excess development floor area
ratio" associated with the mortgaged real property from
the lien of the related mortgage and the other
applicable loan documents upon satisfaction of certain
conditions, including, without limitation, the payment
of an amount equal to the greater of (1) the disposition
proceeds related to such rights that are the subject of
the sale, exchange, transfer, assignment or other
disposition and (2) $225.00 per square foot of rights
being released. Any such release of development rights
prior to the defeasance lockout period must be
accompanied by the applicable yield maintenance premium.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Furthermore, any disposition paid after the permitted
defeasance date will be allocated pro rata between the
Xxxxx Xxxxxx Village and Stuyvesant Town Loan
Combination and each of the related mezzanine loans.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 29 - DEFEASANCE
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Amerihost Inn & Suites The loan documents permit the borrower to prepay through
defeasance or by paying a yield maintenance payment.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 34 - DUE-ON-SALE
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
1001 Frontier The direct interests in the related borrower have been
or may be pledged as security for mezzanine financing,
subject to an intercreditor agreement. In addition,
direct and/or indirect transfers of interests in the
related Borrower are permitted upon notice to, but
without approval or consent from, the Lender, so long as
Fortis Property Group, LLC shall (A) continue to
Control, directly or indirectly, the Borrower and the
related Mortgaged Property, (B) continue to own no less
than twenty-five percent (25%) of the direct and/or
indirect interests in Borrower, and (C) at all times, be
owned by, and under the Control of, Guarantor, Xxxxxxxx
Xxxxxx, an individual, and Xxxxxxxx Xxxxxx, an
individual.
----------------------------------------------------------------------------------------------------------------------
Creekview Apartments Indirect equity transfers in excess of 49% of the equity
interest in Borrower are permitted so long as (i) there
is no change in Control (managerially) of the Borrower,
Guarantor, or the Property, (ii) Borrower remains an
SPE, (iii) Lender receives at least 30 days prior
written notice, and (iv) Lender receives acceptable
searches on any transferee who will hold a 20% or
greater interest in Borrower.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Dover Center at Cool Springs Multiple borrowers did not exist at closing however the
loan documents permit transfers to multiple borrowers as
tenants in common. Lender to confirm if transfers to
tenants in common have occurred subsequent to the date
the loans were closed.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan documents permit the transfer
of certain direct or indirect interests in the
Mortgagor, subject to certain conditions set forth in
the related Mortgage Loan documents.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 35 - SINGLE PURPOSE ENTITY
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The borrower and, as applicable, the assets of the
borrower's general partner may be included in a
consolidated financial statement of their affiliates
provided that (i) appropriate notation shall be made on
such consolidated financial statements to indicate the
separateness of the borrower and general partner from
such affiliate and to indicate that the borrower's and
general partner's assets and credit are not available to
satisfy the debts and other obligations of such
affiliate or any other person, except with respect to
the other the borrower and (ii) the assets of Borrower
and general partner shall also be listed on its own
separate balance sheet and Borrower and, if applicable,
general partner have, if required by applicable law,
filed and will, if required by applicable law, file its
own tax returns and pay any taxes required to be paid
under applicable law.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 36 - WHOLE LOAN
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 37 - TAX PARCELS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
ARROWHEAD PHYSICIANS PLAZA Mortgaged property is not its own tax parcel; the
property is ground leased to borrower, and the mortgaged
property is part of a larger tax parcel which is wholly
owned by ground lessor.
----------------------------------------------------------------------------------------------------------------------
1001 Frontier The related Mortgaged Property is part of a condominium
regime. A portion of the tax parcel of which the
related Mortgaged Property is a part may consist of the
condominium common elements and/or a portion of the land
under another condominium unit. The related Borrower
has covenanted to cause the related Mortgaged Property
(i.e., the condominium unit) to be assessed separately
from the common elements and any portion of any other
unit. Until this is accomplished, the related Borrower
is obligated to pay and escrow for taxes on the full tax
parcel, regardless of whether it includes property which
is not owned by the related Borrower.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 39 - SECURITY INTERESTS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
9600 Brookpark The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (A/B)
structure comprised of two mortgage loans, each of which
is secured by the same mortgage instrument and is
cross-defaulted with the other. The B-Note loan will
not be part of the Trust Fund.
The security interests created by the related UCC
financing statement are for the benefit of the holder of
the Mortgage Loan that will be included in the trust and
the holders of the mortgage loans that will not be
included in the trust.
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The related Mortgage Loan that will be included in the
trust is a senior loan in a multiple loan (pari passu)
structure comprised of six mortgage loans, each of
which is secured by the same mortgage instrument and is
cross-defaulted with the other. The other five pari
passu loans will not be part of the Trust Fund.
The security interests created by the related UCC
financing statement are for the benefit of the holder of
the Mortgage Loan that will be included in the trust and
the holders of the mortgage loans that will not be
included in the trust.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # - 43 - RECOURSE
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The Mortgage Loan is recourse to the borrower's
guarantors only for losses incurred or suffered by the
lender arising out of, (a) any proceeding, action,
petition or filing under the Bankruptcy Code, or any
similar state or federal
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
law now or hereafter in effect relating to bankruptcy,
reorganization or insolvency, or the arrangement or
adjustment of debts which is filed by the borrower, or
(b) the borrower filing an answer consenting to or
otherwise acquiescing in or joining in any involuntary
petition or filing against the borrower by any other
Person under the Bankruptcy Code or any similar state or
federal law now or hereafter in effect relating to
bankruptcy, reorganization or insolvency, or (c) the
borrower instituting any proceeding for its dissolution
or liquidation. The Mortgage Loan is recourse against the
borrower only if the borrower violates the loan
agreement's environmental requirements or declares
bankruptcy or a similar insolvency action.
----------------------------------------------------------------------------------------------------------------------
REPRESENTATION # 50 - ORIGINATION OF THE MORTGAGE LOANS
----------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
Stuyvesant Town/Xxxxx Xxxxxx Village The Loan was jointly originated by Wachovia Bank and
Xxxxxxx Xxxxx.
----------------------------------------------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
NONE
SCHEDULE II
MORTGAGE LOAN SCHEDULE
PROPERTY
LOAN # LOAN GROUP PROPERTY NAME LOAN / PROPERTY ORIGINATOR TYPE
------------------------------------------------------------------------------------------------------------
1 1 MSKP Retail Portfolio - A Loan MLML Retail
1.01 1 Riverbridge Property MLML Retail
1.02 1 Orlando Square Property MLML Retail
1.03 1 Oak Grove Property MLML Retail
1.04 0 Xxxxxxxxxx Xxxxxx Property MLML Retail
1.05 1 Gateway Plaza Property MLML Retail
1.06 1 Xxxxxxx Carrousel Property MLML Retail
1.07 1 Casselberry Exchange Property MLML Retail
1.08 1 Springs Plaza Property MLML Retail
2 2 Xxxxx Xxxxxx Village and Stuyvesant Town Loan MLML Multifamily
2.01 2 Stuyvesant Town Property MLML Multifamily
2.02 2 Xxxxx Xxxxxx Village Property MLML Multifamily
3 1 Westfield Southpark Loan MLML Retail
5 1 International Place Loan MLML Office
7 1 MSKP Retail Portfolio - B Loan MLML Retail
7.01 1 Plaza Del Mar Property MLML Retail
7.02 1 Galt Ocean Marketplace Property MLML Retail
8 1 Spring Valley Marketplace Loan MLML Retail
10 1 5200 West Century Loan MLML Office
11 1 1001 Frontier Loan MLML Office
17 1 All-Space Self Storage Portfolio Loan MLML Self Storage
17.01 1 All-Space Huntington Beach Property MLML Self Storage
17.02 1 All-Space Costa Mesa Property MLML Self Storage
17.03 1 All-Space San Marcos Property MLML Self Storage
17.04 1 All-Space Garden Grove Property MLML Self Storage
18 1 Dover Center at Cool Springs Loan MLML Xxxxxx
00 0 000 Xxxx 00xx Xxxxxx Loan MLML Retail
23 1 Plaza Del Sol Loan MLML Retail
24 1 Grand Blanc Town Center Loan MLML Retail
25 1 SFG Portfolio Loan MLML Various
25.01 1 FiServ/Trinity Health Building Property MLML Office
25.02 1 0000 Xxxxxxxxxx Xxxx Property XXXX Xxxxxxxxxx
00.00 0 Xxxx Xxxxx Neurological Center Property MLML Office
25.04 1 0000 Xxxxxxxxxx Xxxx Property MLML Industrial
27 1 Fairfield Commons Loan MLML Retail
30 1 Xxxxxxxxxxx Marketplace Loan MLML Retail
32 1 Xxxxxxx Inn, Chantilly Loan MLML Hospitality
33 1 Palms to Pines Shopping Complex Loan MLML Retail
34 2 Renaissance at Xxxxxx Apartments Loan MLML Multifamily
35 1 6101 Yellowstone Road Loan MLML Office
36 1 Food for Less - Fullerton Loan MLML Retail
37 1 Riverchase Medical Suites Loan MLML Office
38 1 Trabuco Hills Center II Loan MLML Retail
39 1 Fiesta Xxxxxxx Shopping Center Loan MLML Retail
40 1 Food for Less - Xxxxxxx Loan MLML Retail
42 1 Arrowhead Physicians Plaza Loan MLML Office
43 2 Spanish Point Apartments Loan MLML Multifamily
44 1 Maryvale Plaza Loan MLML Retail
46 1 East Port Center Loan MLML Industrial
51 1 Alside Distribution Center Loan MLML Industrial
53 1 Rite Aid Portfolio - Fredricksburg Loan MLML Retail
53.01 1 Rite Aid - Xxxxxxxx Property MLML Retail
53.02 1 Rite Aid - Spotsylvania Property MLML Retail
55 1 Trabuco Hills Center I Loan MLML Retail
56 1 Village at West Main Loan MLML Mixed Use
59 1 3311 Broadway Northeast Loan MLML Industrial
62 1 Grand Creek Plaza Loan MLML Mixed Use
64 1 Cheyenne Business Center Loan MLML Xxxxxx
00 0 000 Xxxx 0xx Xxxxxx Xxxx XXXX Xxxxxx
67 1 Radisson Milwaukee North Shore Loan MLML Hospitality
68 1 Amerihost Inn & Suites Loan MLML Hospitality
69 1 Michigan Road Shoppes Loan MLML Retail
71 1 Shoppes at Jefferson City Loan MLML Retail
73 1 4097 Jericho East Loan MLML Retail
79 1 Topeka Plaza Loan MLML Retail
80 1 Water Street Office Loan MLML Xxxxxx
00 0 Xxxxxxxxxx Xxxxxx Xxxx XXXX Xxxxxx
00 0 Xxxxxxxx Xxxxx Retail Portfolio Loan MLML Retail
83.01 1 Kemps Corner Property MLML Retail
83.02 1 Mill Dam Property MLML Retail
84 2 Creekview Apartments Loan MLML Multifamily
85 1 Hampton Inn - Elgin Loan MLML Hospitality
86 1 Downey Retail Loan MLML Retail
87 1 Riverside Corporate Center Loan MLML Industrial
89 1 9600 Brookpark Road Loan MLML Retail
91 1 Blossom Centre Loan MLML Retail
92 2 Xxxxxx Crossing Loan MLML Multifamily
93 1 Xxxxxx Commons I & II Loan MLML Retail
94 1 Xxxxxx Parkway Loan MLML Industrial
95 1 Springfield Office Loan MLML Office
96 1 72 Xxxxx Court Loan MLML Office
102 1 CVS - Dade City Loan MLML Retail
106 2 Garden Quarter II Loan MLML Multifamily
110 1 Trabuco Hills Shops Loan MLML Retail
111 1 208-212 South Xxxxxxx Drive Loan MLML Mixed Use
113 1 Staples Waterville Maine Loan MLML Retail
114 1 Lakewood Plaza Loan MLML Retail
115 1 Kings Ridge Village Loan MLML Retail
118 1 Madison Business Park Loan MLML Industrial
120 1 Norco Gateway Center Loan MLML Retail
125 1 Eagle Bend Marketplace Loan MLML Retail
145 1 Xxxxxxxxx City Crossing Phase II Loan MLML Retail
LOAN # STREET ADDRESS CITY
---------------------------------------------------------------------------------------------------------------------
1 Various Various
1.01 0000-0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx
1.02 0000 Xxxx Xxxx Xxxx Xxxx Xxxxxxx
1.03 000 Xxxxx Xxxx 000 Xxxxx Xxxxxxxxx Xxxxxxx
1.04 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx Coral Springs
1.05 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
1.06 0000-0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx
1.07 0000 Xxxxx X.X. Xxxxxxx 17/92 Casselberry
1.08 0000-0000 Xxxx Xxxxx Xxxx 434 and 000-000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxx
2 110 Building Development Between 1st Avenue & Avenue C, Between 14th & East 23rd Streets New York
2.01 New York
2.02 New York
3 500 Southpark Center Strongsville
5 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx
7 Various Various
7.01 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
7.02 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx
8 1-46 Spring Valley Marketplace Spring Valley
10 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
11 1001 Frontier Road Bridgewater
17 Various Various
17.01 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx
17.02 0000 Xxxxxxx Xxxxxxxxx Xxxxx Xxxx
17.03 0000-0000 Xxxxx Xxxxxx San Marcos
17.04 00000 Xxxxx Xxxxxx Xxxxxx Xxxxx
18 113 & 000 Xxxxxxxx Xxxx Xxxxxxxx
20 000 Xxxx 00xx Xxxxxx Xxx Xxxxxxx
23 10950, 10960 & 00000 Xxxxxxx Xxx Xxxxxxx
24 6301-6335 Dort Highway and 0000-0000 Xxxxxxx Xxxx Grand Blanc
25 Various Various
25.01 0000 Xxxxxx Xxxxx Xxxxx Xxxx
25.02 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxx
25.03 0000 Xxxx Xxxxxx Xxxx Xxxxx
25.04 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxx
27 00-00 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxx
30 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx Beach
32 3940 Centerview Drive Chantilly
33 72655-72705 Highway 111 Palm Desert
34 1600 Xxx Xxxxxxx Boulevard Norman
35 0000 Xxxxxxxxxxx Xxxx Cheyenne
36 000 Xxxx Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx
37 0000 Xxxxxxx Xxxxx Xxxxxxx
00 00000 - 27855 Santa Xxxxxxxxx Parkway Mission Viejo
39 10600-10760 North Loop Drive Xxxxxxx
40 7910 Katella Avenue Xxxxxxx
42 18699 Xxxxx 00xx Xxxxxx Xxxxxxxx
43 0000 Xxxxxxx Xxxx Xxxx Xxxxxx
00 0000-0000 West Indian School Road Phoenix
46 0000-0000 Xxxxx Xxxx 00 Xxxx Xxxxxxxxxx
51 0000 Xxxx 00xx Xxxxxx Yuma
53 Various Fredericksburg
53.01 0000 Xxxxxxxxxxxxx Xxxxxxx Fredericksburg
53.02 00000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxxx
55 27785, 27845 and 00000 Xxxxx Xxxxxxxxx Xxxxxxx Mission Viejo
56 000 Xxxx Xxxx Xxxxxx Xxxxxxxx
59 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx
62 000 Xxxxx Xxxxx Xxxxxx Xxxx Covina
64 0000 Xxxx Xxxxxxxx Xxxxxxxxx Cheyenne
66 000 Xxxx 0xx Xxxxxx Xxx Xxxxxxx
67 0000 Xxxxx Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx
68 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx
00 00xx Xxxxxx xxx Xxxxxxxx Xxxx Xxxxxxxxxxxx
00 0000 Xxxxxxxx Xxxxxxxxx Jefferson City
73 0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx
79 18955-18973 Xxxxxxx Xxxxxxxxx Xxxxxxx
00 303 Water Street Xxxxxxxxx
82 1501-1525 Xxxx Xxx Xxxx Xxxxxxxxx
00 Various Virginia Beach
83.01 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx Beach
83.02 0000-0000 Xxxxx Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxx
84 000 Xxxxx Xxxxxxx 1417 Xxxxxxx
85 000 Xxxxxxx Xxxx Xxxxx
86 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
87 0000-0000 Xxxxx Xxxx Xxxx Belcamp
89 0000 Xxxxxxxxx Xxxx Xxxxxxxx
91 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
92 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx
93 0000-0000 000xx Xxxxxx Northwest Andover
94 000-000 Xxxxxx Xxxxxxx Xxxxxxxx Heights
95 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx
96 72 Xxxxx Court Xxxxxxxx Xxxx
000 00000 Xxxxx XX Xxxxxxx 301 Dade City
106 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx
110 27755 and 00000 Xxxxx Xxxxxxxxx Xxxxxxx Mission Viejo
111 000-000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx Hills
113 00 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx
114 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx
115 0000 Xxxxx X.X. Xxxxxxx 00 Xxxxxxxx
118 26765 & 00000 Xxxxxxx Xxxxxx Murrieta
120 0000 Xxxxxx Xxxxxx Norco
125 22651, 22691 & 00000 Xxxx Xxxxxx Xxxxxxx Aurora
145 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST
LOAN # COUNTY STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE %
---------------------------------------------------------------------------------------------------------------------------------
1 Various FL Various 223,400,000 223,400,000 1,059,908.89 12,718,906.68 5.6000
1.01 Xxxx Xxxxx XX 00000 53,000,000 53,000,000
1.02 Xxxxxx XX 00000 38,750,000 38,750,000
1.03 Xxxxxxxx XX 00000 24,000,000 24,000,000
1.04 Xxxxxxx XX 00000 23,750,000 23,750,000
1.05 Xxxxxxxx XX 00000 23,750,000 23,750,000
1.06 Xxxxxxxxx XX 00000 23,200,000 23,200,000
1.07 Xxxxxxxx XX 00000 19,750,000 19,750,000
1.08 Xxxxxxxx XX 00000 17,200,000 17,200,000
2 Xxx Xxxx XX 00000, 10010 202,272,727 202,272,727 1,102,594.26 13,231,131.12 6.4340
2.01 Xxx Xxxx XX 00000, 10010 156,475,129 156,475,129
2.02 Xxx Xxxx XX 00000, 10010 45,797,599 45,797,599
3 Xxxxxxxx XX 00000 150,000,000 150,000,000 686,440.63 8,237,287.56 5.4015
5 Xxxxxxxxx XX 00000 72,000,000 72,000,000 329,674.50 3,956,094.00 5.4045
7 Various FL Various 59,400,000 59,400,000 278,493.52 3,341,922.24 5.5339
7.01 Xxxx Xxxxx XX 00000 31,450,000 31,450,000
7.02 Xxxxxxx XX 00000 27,950,000 27,950,000
8 Xxxxxxxx XX 00000 46,800,000 46,800,000 254,736.94 3,056,843.28 5.6110
10 Xxx Xxxxxxx XX 00000 40,000,000 40,000,000 189,574.44 2,274,893.28 5.5940
11 Xxxxxxxx XX 0000 37,950,000 37,950,000 179,807.31 2,157,687.72 5.5924
17 Various CA Various 26,975,534 27,000,000 155,921.94 1,871,063.28 5.6540
17.01 Xxxxxx XX 00000 11,022,997 11,032,995
17.02 Xxxxxx XX 00000 7,668,172 7,675,127
17.03 Xxx Xxxxx XX 00000 5,819,595 5,824,873
17.04 Xxxxxx XX 00000 2,464,770 2,467,005
18 Xxxxxxxxxx XX 00000 26,000,000 26,000,000 156,083.78 1,873,005.36 6.0120
20 Xxx Xxxxxxx XX 00000 22,600,000 22,600,000 126,187.42 1,514,249.04 5.3490
23 Xxx Xxxxxxx XX 00000 19,700,000 19,700,000 115,602.89 1,387,234.68 5.8010
24 Xxxxxxx XX 00000 19,000,000 19,000,000 88,534.72 1,062,416.64 5.5000
25 Various IN Various 19,000,000 19,000,000 108,620.16 1,303,441.92 5.5620
25.01 Xx Xxxxxx XX 00000 9,800,000 9,800,000
25.02 Xxxxx XX 00000 3,800,000 3,800,000
25.03 Xxxxx XX 00000 3,700,000 3,700,000
25.04 Xxxxx XX 00000 1,700,000 1,700,000
27 Xxxxxxxxx XX 00000 18,000,000 18,000,000 99,379.45 1,192,553.40 5.7290
30 Xxxxxxxx Xxxxx Xxxx XX 00000 16,400,000 16,400,000 81,240.82 974,889.84 5.8470
32 Xxxxxxx XX 00000 15,500,000 15,500,000 90,011.18 1,080,134.16 5.7050
33 Xxxxxxxxx XX 00000 14,000,000 14,000,000 67,039.00 804,468.00 5.6520
34 Xxxxxxxxx XX 00000 13,585,000 13,585,000 76,072.09 912,865.08 5.3750
35 Xxxxxxx XX 00000 13,149,159 13,200,000 79,047.34 948,568.08 5.9890
36 Xxxxxx XX 00000 13,079,995 13,100,000 76,178.63 914,143.56 6.1680
37 Xxxxxx XX 00000 13,050,000 13,050,000 76,554.65 918,655.80 5.7980
38 Xxxxxx XX 00000 13,000,000 13,000,000 62,779.17 753,350.04 5.7000
39 Xx Xxxx XX 00000 12,773,127 12,800,000 78,292.23 939,506.76 6.1875
40 Xxxxxx XX 00000 12,081,523 12,100,000 70,363.46 844,361.52 6.1680
42 Xxxxxxxx XX 00000 11,900,000 11,900,000 60,622.73 727,472.76 6.0130
43 Xxxxxx XX 00000 11,200,000 11,200,000 65,004.85 780,058.20 5.7000
44 Xxxxxxxx XX 00000 11,140,000 11,140,000 55,590.15 667,081.80 5.8900
46 Xxxxxxx XX 00000 10,500,000 10,500,000 62,104.75 745,257.00 5.8740
51 Xxxx XX 00000 9,800,000 9,800,000 58,378.45 700,541.40 5.9400
53 Various VA Various 9,528,292 9,550,000 55,428.24 665,138.88 5.7000
53.01 Xxxxxxxx XX 00000 5,138,294 5,150,000
53.02 Xxxxxxxxxxxx XX 00000 4,389,998 4,400,000
55 Xxxxxx XX 00000 9,300,000 9,300,000 44,911.25 538,935.00 5.7000
56 Xxxxxxxxxx XX 00000 9,200,000 9,200,000 54,139.57 649,674.84 5.8270
59 Xxxxxxxx XX 00000 8,422,678 8,430,000 49,570.70 594,848.40 5.8200
62 Xxx Xxxxxxx XX 00000 8,000,000 8,000,000 45,538.63 546,463.56 5.5230
64 Xxxxxxx XX 00000 7,943,497 7,950,000 47,920.13 575,041.56 6.0500
66 Xxx Xxxxxxx XX 00000 7,700,000 7,700,000 43,830.93 525,971.16 5.5230
67 Xxxxxxxxx XX 00000 7,593,482 7,600,000 44,927.73 539,132.76 5.8690
00 Xxxxxxxx XX 00000 7,583,686 7,600,000 45,815.33 549,783.96 6.0510
69 Xxxxxx XX 00000 7,500,000 7,500,000 44,255.15 531,061.80 5.8520
71 Xxxx XX 00000 7,200,000 7,200,000 39,242.50 470,910.00 5.6220
73 Xxxxxxx XX 00000 6,995,625 7,000,000 37,793.17 453,518.04 5.5440
79 Xxx Xxxxxxx XX 00000 6,300,000 6,300,000 34,486.85 413,842.20 5.6580
80 Xxxxx XX 00000 6,180,022 6,200,000 35,690.70 428,288.40 5.6250
82 Xxxxxxx XX 00000 5,950,000 5,950,000 34,919.38 419,032.56 5.8020
83 Virginia Beach City VA Various 5,800,000 5,800,000 33,564.05 402,768.60 5.6730
83.01 Xxxxxxxx Xxxxx Xxxx XX 00000 3,600,000 3,600,000
83.02 Xxxxxxxx Xxxxx Xxxx XX 00000 2,200,000 2,200,000
84 Xxxxxxx XX 00000 5,650,000 5,650,000 33,196.53 398,358.36 5.8125
85 Xxxx XX 00000 5,400,000 5,400,000 31,420.37 377,044.44 5.7230
86 Xxx Xxxxxxx XX 00000 5,400,000 5,400,000 31,215.12 374,581.44 5.6630
87 Xxxxxxx XX 00000 5,395,553 5,400,000 32,459.10 389,509.20 6.0240
89 Xxxxxxxx XX 00000 5,150,000 5,150,000 33,118.59 397,423.08 5.9800
91 Xxxxx XX 00000 5,000,000 5,000,000 29,375.87 352,510.44 5.8120
92 Xxxx XX 00000 5,000,000 5,000,000 28,798.61 345,583.32 5.6300
93 Xxxxx XX 00000 4,955,699 4,960,000 29,188.29 350,259.48 5.8270
94 Xxxxx Xxxxx XX 00000 4,842,399 4,850,000 27,748.72 332,984.64 6.0290
95 Xxxxxx XX 00000 4,740,224 4,750,000 29,432.18 353,186.16 6.3100
96 Xxxxxxx XX 00000 4,700,000 4,700,000 26,990.72 323,888.64 5.7820
000 Xxxxx XX 00000 4,050,000 4,050,000 23,786.71 285,440.52 5.8090
106 Xxxx XX 00000 4,000,000 4,000,000 23,033.83 276,405.96 5.6280
110 Xxxxxx XX 00000 3,950,000 3,950,000 18,881.11 226,573.32 5.6420
111 Xxx Xxxxxxx XX 00000 3,897,683 3,900,000 21,449.56 257,394.72 5.6970
113 Kennebec ME 4901 3,647,867 3,650,000 20,193.09 242,317.08 5.7460
114 Xxxxxxx XX 00000 3,207,339 3,210,000 19,245.57 230,946.84 6.0000
000 Xxxx XX 00000 3,197,229 3,200,000 18,841.36 226,096.32 5.8320
118 Xxxxxxxxx XX 00000 3,185,000 3,185,000 15,979.94 191,759.28 5.9220
120 Xxxxxxxxx XX 00000 3,000,000 3,000,000 17,356.92 208,283.04 5.6710
125 Xxxxxxxx XX 00000 2,694,068 2,700,000 16,030.24 192,362.88 5.9090
145 Xxxxxxxxxx XX 00000 674,461 675,000 4,108.79 49,305.48 6.1420
NET MONTHLY
PRIMARY MASTER SUB SERVICIN MORTGAGE PAYMENT MATURITY/ AMORT
LOAN # SERVICING FEE SERVICING FEE FEE RATE RATE % ACCRUAL TYPE TERM DATE REM. TERM ARD DATE TERM
----------------------------------------------------------------------------------------------------------------------------------
1 0.010 0.010 5.57910 Actual/360 120 8 119 3/8/2017 0
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 0.010 0.0100 6.41310 Actual/360 120 8 116 12/8/2016 0
2.01
2.02
3 0.010 0.010 5.38060 Actual/360 120 8 119 3/8/2017 0
5 0.010 0.010 5.38360 Actual/360 60 8 58 2/8/2012 0
7 0.010 0.010 5.51298 Actual/360 60 8 59 3/8/2012 0
7.01
7.02
8 0.010 0.010 5.59010 Actual/360 120 8 119 3/8/2017 420
10 0.010 0.010 5.57310 Actual/360 120 8 117 1/8/2017 0
11 0.010 0.010 5.57150 Actual/360 120 8 119 3/8/2017 0
17 0.010 0.010 5.63310 Actual/360 120 8 119 3/8/2017 360
17.01
17.02
17.03
17.04
18 0.010 0.010 5.99110 Actual/360 120 1 113 9/1/2016 360
20 0.010 0.010 5.32810 Actual/360 120 8 118 2/8/2017 360
23 0.010 0.0900 5.70010 Actual/360 120 8 118 2/8/2017 360
24 0.010 0.0140 5.47510 Actual/360 120 8 118 2/8/2017 0
25 0.010 0.010 5.54110 Actual/360 120 8 120 4/8/2017 360
25.01
25.02
25.03
25.04
27 0.010 0.010 5.70810 Actual/360 120 8 119 3/8/2017 420
30 0.010 0.0800 5.75610 Actual/360 120 8 119 3/8/2017 0
32 0.010 0.010 5.68410 Actual/360 120 8 120 4/8/2017 360
33 0.010 0.010 5.63110 Actual/360 120 8 119 3/8/2017 0
34 0.010 0.0100 5.35410 Actual/360 60 1 38 6/1/2010 360
35 0.010 0.010 5.96810 Actual/360 120 1 116 12/1/2016 360
36 0.010 0.010 6.14710 Actual/360 120 8 118 2/8/2017 420
37 0.010 0.010 5.77710 Actual/360 120 8 120 4/8/2017 360
38 0.010 0.010 5.67910 Actual/360 120 8 116 12/8/2016 0
39 0.010 0.010 6.16660 Actual/360 120 8 118 2/8/2017 360
40 0.010 0.010 6.14710 Actual/360 120 8 118 2/8/2017 420
42 0.010 0.010 5.99210 Actual/360 120 8 119 3/8/2017 0
43 0.010 0.010 5.67910 Actual/360 120 8 118 2/8/2017 360
44 0.010 0.010 5.86910 Actual/360 120 8 120 4/8/2017 0
46 0.010 0.010 5.85310 Actual/360 120 8 118 2/8/2017 360
51 0.010 0.010 5.91910 Actual/360 120 8 120 4/8/2017 360
53 0.010 0.0500 5.63910 Actual/360 120 8 118 2/8/2017 360
53.01
53.02
55 0.010 0.010 5.67910 Actual/360 120 8 116 12/8/2016 0
56 0.010 0.010 5.80610 Actual/360 120 8 119 3/8/2017 360
59 0.010 0.010 5.79910 Actual/360 84 8 83 3/8/2014 360
62 0.010 0.010 5.50210 Actual/360 120 8 118 2/8/2017 360
64 0.010 0.010 6.02910 Actual/360 120 8 119 3/8/2017 360
66 0.010 0.010 5.50210 Actual/360 120 8 118 2/8/2017 360
67 0.010 0.010 5.84810 Actual/360 120 8 119 3/8/2017 360
68 0.010 0.010 6.03010 Actual/360 120 8 118 2/8/2017 360
69 0.010 0.010 5.83110 Actual/360 120 8 120 4/8/2017 360
71 0.010 0.010 5.60110 Actual/360 120 8 120 4/8/2017 420
73 0.010 0.010 5.52310 Actual/360 120 8 119 3/8/2017 420
79 0.010 0.010 5.63710 Actual/360 120 8 119 3/8/2017 420
80 0.010 0.010 5.60410 Actual/360 120 8 117 1/8/2017 360
82 0.010 0.010 5.78110 Actual/360 120 8 117 1/8/2017 360
83 0.010 0.010 5.65210 Actual/360 120 8 120 4/8/2017 360
83.01
83.02
84 0.010 0.010 5.79160 Actual/360 120 5 117 1/5/2017 360
85 0.010 0.010 5.70210 Actual/360 120 8 119 3/8/2017 360
86 0.010 0.010 5.64210 Actual/360 120 8 119 3/8/2017 360
87 0.010 0.0400 5.97310 Actual/360 180 8 179 3/8/2022 360
89 0.010 0.010 5.95910 Actual/360 120 8 120 4/8/2017 300
91 0.010 0.010 5.79110 Actual/360 120 8 120 4/8/2017 360
92 0.010 0.010 5.60910 Actual/360 120 8 117 1/8/2017 360
93 0.010 0.0700 5.74610 Actual/360 120 8 119 3/8/2017 360
94 0.010 0.0500 5.96810 Actual/360 60 8 58 2/8/2012 420
95 0.010 0.010 6.28910 Actual/360 120 8 118 2/8/2017 360
96 0.010 0.010 5.76110 Actual/360 120 8 120 4/8/2017 380
102 0.010 0.010 5.78810 Actual/360 120 1 117 1/1/2017 360
106 0.010 0.010 5.60710 Actual/360 120 8 117 1/8/2017 360
110 0.010 0.010 5.62110 Actual/360 120 8 117 1/8/2017 0
111 0.010 0.010 5.67610 Actual/360 120 8 119 3/8/2017 420
113 0.010 0.0500 5.68510 Actual/360 120 8 119 3/8/2017 420
114 0.010 0.010 5.97910 Actual/360 120 8 119 3/8/2017 360
115 0.010 0.010 5.81110 Actual/360 120 8 119 3/8/2017 360
118 0.010 0.010 5.90110 Actual/360 120 8 119 3/8/2017 0
120 0.010 0.010 5.65010 Actual/360 120 8 118 2/8/2017 360
125 0.010 0.010 5.88810 Actual/360 120 8 118 2/8/2017 360
145 0.010 0.1000 6.03110 Actual/360 120 8 119 3/8/2017 360
PARTIAL
ARD ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF
LOAN # REM. AMORT TITLE TYPE ARD LOAN STEP UP INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT
---------------------------------------------------------------------------------------------------------------------------
1 0 Fee No Yes
1.01 Fee No
1.02 Fee No
1.03 Fee No
1.04 Fee No
1.05 Fee No
1.06 Fee No
1.07 Fee No
1.08 Fee No
2 0 Fee No Yes
2.01 Fee No
2.02 Fee No
3 0 Fee Xx
0 0 Xxx Xx
0 0 Xxx Xx
7.01 Fee No
7.02 Fee No
8 420 Fee No
10 0 Fee No
11 0 Fee No
17 359 Fee No
17.01 Fee No
17.02 Fee No
17.03 Fee No
17.04 Fee No
18 360 Fee No
20 360 Fee No
23 360 Fee No
24 0 Fee No
25 360 Fee No Yes
25.01 Fee No
25.02 Fee No
25.03 Fee No
25.04 Fee No
27 420 Fee No
30 0 Fee No
32 360 Fee No
33 0 Fee No
34 360 Fee No
35 356 Fee No
36 418 Fee No
37 360 Fee No
38 0 Fee No
39 358 Fee No
40 418 Fee No
42 0 Leasehold No
43 360 Fee No
44 0 Fee No
46 360 Fee No
51 360 Leasehold No
53 358 Fee No Yes
53.01 Fee No
53.02 Fee No
55 0 Fee No
56 360 Fee No
59 359 Fee No Yes
62 360 Fee No
64 359 Fee No
66 360 Fee No
67 359 Fee No
68 358 Fee No
69 360 Fee No Yes
71 420 Fee No
73 419 Fee No
79 420 Fee No
80 357 Fee No
82 360 Leasehold No
83 360 Fee No Yes
83.01 Fee No
83.02 Fee No
84 360 Fee No
85 360 Fee No
86 360 Fee No
87 359 Fee No
89 300 Fee No
91 360 Fee No
92 360 Fee No
93 359 Fee No
94 418 Fee No
95 358 Fee No
96 380 Fee No
102 360 Fee No
106 360 Fee Xx
000 0 Xxx Xx
000 000 Xxx Xx Yes
113 419 Fee No
114 359 Fee No
115 359 Fee Xx
000 0 Xxx Xx
000 000 Xxx Xx
125 358 Fee No
145 359 Fee No
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
LOCKBOX HOLDBACK ENGINEERING CAPEX TI/LC RE TAX INS.
LOAN # TYPE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
-----------------------------------------------------------------------------------------------------------------------------
1 Hard 661,000
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 Hard 60,000,000 3,539,035 987,198
2.01
2.02
3 Hard
5 Hard
7 Hard 165,000
7.01
7.02
8 782,712
10 Hard 21,250 1,000,000 74,273 8,912
11 Hard 243,390 107,636 4,822
17 105,900 23,908
17.01
17.02
17.03
17.04
18 None at Closing, Springing Hard 285,500 750,000 281,413 5,581
20 3,234
23 34,063
24
25 Hard 81,134 6,569
25.01
25.02
25.03
25.04
27 None at Closing, Springing Hard 23,438
30 Hard 66,287 14,714
32 Hard 54,019 50,002
33 11,484
34 Soft at Closing, Springing Hard 47,753 15,119
35 None at Closing, Springing Hard 121,750 32,152 3,363
36 Hard
37 41,283 8,967
38 9,953
39 25,000 125,000 60,892 6,410
40 Hard
42 18,750
43 150,000 24,608 35,817
44 141,706 8,242
46 64,114
51 Soft 300,000 10,416
53 Hard
53.01
53.02
55 4,701
56 1,400,000 49,431 8,757
59 Hard 98,984
62 100,000 5,802
64 Soft at Closing, Springing Hard 3,828 5,597
66 100,000 5,787
67 Soft at Closing, Springing Hard 31,336 32,919
68 Hard 21,865 21,442
69 57,907
71 Soft at Closing, Springing Hard 165,000 3,322
73 #VALUE! 57,195 50,000 67,229 4,864
79 13,489 2,490
80 14,231 1,311
82 150,000 15,224 5,328
83 Hard 22,197 8,182
83.01
83.02
84 34,970 17,176
85 Hard 48,428 2,285
86 25,000
87 34,758
89 Hard 42,506 22,256
91 25,000 18,463 1,190
92 12,900 21,792
93
94 25,000 19,981 12,876
95 Hard 14,129
96 Hard 150,000 2,305
102 Hard
106 17,216 13,600
110 100,000 8,190 4,386
111
113 Hard 1,633
114 44,000 8,651 52,786
115 4,387
118 4,212
120 3,642
125
145 2,134 441
UPFRONT MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
OTHER CAPEX CAPEX TI/LC TI/LC RE TAX INS. OTHER
LOAN # RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE ($) RESERVE ($)
------------------------------------------------------------------------------------------------------------------------------
1 17,805,000
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 590,000,000 234,000 3,539,035 493,599
2.01
2.02
3
5
7 5,800,000
7.01
7.02
8 93,227
10 2,274,714 6,710 100,000 18,568 8,912
11 1,581,082 3,739 224,313 53,818 4,822
17 3,983 11,339 4,116
17.01
17.02
17.03
17.04
18 25,583 5,581
20 3,002 809
23 220,047 3,279 6,831 163,942 23,464 2,390
24 500,000
25 3,514 20,284 3,284
25.01
25.02
25.03
25.04
27 24,889 1,663 19,956 7,500 180,000 31,321 1,814
30 2,741 16,572 2,452
32 14,167 10,804 5,000
33 79,116 1,022 3,000 180,000 12,143 2,297
34 4,750 9,551 5,040
35 751,079 5,507 4,167 225,000 8,038 1,682
36 990 23,755
37 1,180 10,321 996
38 1,991 47,790 1,250 30,000 12,910 1,422
39 25,000 125,000 30,446 3,205
40 1,013 24,300
42 484,756 829 29,837 3,750 225,000 1,705
43 7,500 12,304 7,959
44 1,134 3,023 109,000 15,236 1,648
46 1,315,500 904 4,167 100,000 15,957 24,581
51 1,855 22,260 2,083
53 55,428
53.01
53.02
55 241 9,700 2,500 60,000 7,593 940
56 15,000 224 8,064 4,494 1,751
59 594,848 1,752 2,264 105,000 19,797
62 560 1,868 100,000 5,258 829
64 415,224 1,350 8,333 500,000 3,828 1,119
66 703 2,871 100,000 3,368 827
67 3,768 7,834 6,584
68 6,992 6,247 2,382
69 81,060 423 10,146 9,651
71 417 20,020 1,757 27,500 554
73 325 434 50,000 13,446 1,216
79 273 728 5,182 1,245
80 383 4,122 4,744 656
82 33,000 800 28,786 2,083 225,000 5,075 1,332
83 400,000 1,124 4,167 100,000 4,439 1,636
83.01
83.02
84 3,000 8,742 2,642
85 6,613 8,071 2,285
86 8,500 249 2,083 50,000 4,066 382
87 425,000 4,345
89 77,517 712 10,626 7,419
91 2,948 2,527 150,000 4,616 1,190
92 7,264
93 15,120 459 8,031 429
94 890 2,083 75,000 9,990 1,431
95 624 2,073 4,710
96 592.00 15,660 2,435 250,000 5,138 576
102 20,420 161
106 4,533
110 236 11,346 417 20,000 2,730 548
111 130,000 5,748 100,000
113 299 10,764 272
114 210,000 421 1,052 50,000 2,163 4,799
115 210 1,250 75,000 3,619 1,462
118 25,715 2,106 793
120 177,410 119 850 51,000 911 356
125 453 10,001 408
145 196 11,750 267 88
XXXXX XXXXX
LOAN # TO LATE TO DEFAULT
-----------------------------
1 0 0
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 0 0
2.01
2.02
3 0 0
5 0 0
7 0 0
7.01
7.02
8 0 0
10 0 0
11 0 0
17 0 0
17.01
17.02
17.03
17.04
18 5 5
20 0 0
23 0 0
24 0 0
25 0 0
25.01
25.02
25.03
25.04
27 0 0
30 0 0
32 0 0
33 0 0
34 5 5
35 5 5
36 0 0
37 0 0
38 0 0
39 0 0
40 0 0
42 0 0
43 0 0
44 0 0
46 0 0
51 0 0
53 0 0
53.01
53.02
55 0 0
56 0 0
59 0 0
62 0 0
64 0 0
66 0 0
67 0 0
68 0 0
69 0 0
71 0 0
73 0 0
79 0 0
80 0 0
82 0 0
83 0 0
83.01
83.02
84 3 3
85 0 0
86 0 0
87 0 0
89 0 0
91 0 0
92 0 0
93 0 0
94 0 0
95 0 0
96 0 0
102 5 5
106 0 0
110 0 0
111 0 0
113 0 0
114 0 0
115 0 0
118 0 0
120 0 0
125 0 0
145 0 0
SCHEDULE III
MERS MORTGAGE LOANS
--------------------------------------------------------------------------------------------------------------
MERS NUMBER PROPERTY NAME POOL
--------------------------------------------------------------------------------------------------------------
1 MERS 8000101-0000004896-6 Xxxxxxxxxx Xxxxxxx Xxxxxx XX-XXX 0000-0
--------------------------------------------------------------------------------------------------------------
2 MERS 8000101-0000005004-6 Xxxxxxxxx Xxx & Xxxxxx XX-XXX 0000-0
--------------------------------------------------------------------------------------------------------------
3 MERS 8000101-0000005006-1 Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxx XX-XXX 0000-0
--------------------------------------------------------------------------------------------------------------
4 MERS 8000101-0000004224-1 Xxxxxx Commons I & II ML-CFC 2007-6
-------------------------------------------------------------------------------------------------------------
