EXHIBIT 99.3
NOMURA MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of August 1, 2007
(this "Agreement"), is entered into between NOMURA CREDIT & CAPITAL, INC. (the
"Seller") and WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. 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 (each, a "Class") 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 (the "Pooling and Servicing Agreement"), dated as of August
1, 2007, among the Purchaser, as depositor, Wachovia Bank, National Association,
as master servicer (in such capacity, the "Master Servicer"), LNR Partners,
Inc., as special servicer (the "Special Servicer") and Xxxxx Fargo Bank, N.A.,
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.
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 $639,286,752 (the "Nomura 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 Nomura Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-Off Date (after
giving effect to any payments due on or before such date whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-Off Date Pool Balance") of $3,602,123,586 (subject to a variance of plus or
minus 5.0%). The purchase and sale of the Mortgage Loans shall take place on
August 22, 2007, or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the
"Aggregate Purchase Price") for the Mortgage Loans shall be equal to (i) %
of the Nomura Mortgage Loan Balance as of the Cut-Off Date, plus (ii)
$2,247,264, which amount represents the amount of interest accrued on the Nomura
Mortgage Loan Balance at the related Net Mortgage Rate for the period from and
including the Cut-Off Date up to but not including the Closing Date.
The Aggregate Purchase Price 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 receipt by the
Seller of the Aggregate Purchase Price and satisfaction of the other conditions
to closing that are for the benefit of the Seller, 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, 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.
(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 on or 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
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, 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 "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C33" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or 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;
(iii) 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 (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2007-C33", or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C33", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(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 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 (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such 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 and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C33, as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum of
Ground Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan;
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and applicable transfer or
assignment documents; and
(xiv) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Intercreditor
Agreement; provided that a copy of each Mortgage Note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
Notwithstanding the foregoing, with respect to the Sawgrass Xxxxx Loan,
the X.X. Xxxxxx 2007-LDP12 Trustee will hold the original documents
(except for the original note, or lost note affidavit, if applicable,
which will be held by the Trustee) related to the Sawgrass Xxxxx Loan for
the benefit of the X.X. Xxxxxx 2007-LDP12 Trust Fund.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust Fund pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing and
in good standing under the laws of the State of Delaware and possesses all
requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
relating to or affecting the enforcement of creditors' rights in general
and by general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement which purport to provide indemnification from liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
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;
(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 have consequences
that would 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) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement;
(viii) Reserved;
(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 Aggregate Purchase Price. 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 arises from its
role as "sponsor" within the meaning of Items 1104, 1117 and 1119 of
Regulation AB), the Mortgage Loans, the related Mortgagors and the related
Mortgaged Properties (in the case of the Mortgage Loans, the related
Mortgagors and the related Mortgaged Properties, pursuant to Items 1110
and 1111 of Regulation AB); and
(xi) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser
(or, with respect to any Companion Loan that is deposited into another
securitization, the depositor in such other securitization) and the
Trustee with any Additional Form 10-K Disclosure and any Additional Form
10-D Disclosure set forth next to the Purchaser's name on Exhibit U and
Exhibit W, respectively, of the Pooling and Servicing Agreement within the
time periods set forth in the Pooling and Servicing Agreement. The
obligation of the Seller to provide the above referenced disclosure
materials as to any fiscal year will terminate upon the Trustee's filing a
Form 15 with respect to the Trust Fund as to such fiscal year in
accordance with Section 8.17 of the Pooling and Servicing Agreement or the
reporting requirements with respect to the Trust under the Securities
Exchange Act of 1934 have otherwise automatically suspended.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) above shall be held by the Trustee until the earlier of (x)
the date on which the Master Servicer certifies to the Trustee and the
Controlling Class Representative that such exception has been cured (or the
Trustee certifies the same to the Controlling Class Representative), at which
time such funds or letter of credit, as applicable, shall be returned to the
Seller and (y) thirty (30) Business Days or, if the Controlling Class
Representative has extended the cure period, forty-five (45) Business Days after
the Closing Date; provided, however, that if such exception is not cured within
such thirty (30) Business Days or forty-five (45) Business Days, as the case may
be, (A) in the case of clause (2), the Trustee shall retain the funds on deposit
in the related Special Reserve Account, or letter of credit, as applicable, or
(B) in the case of clause (3), the Seller shall repurchase the related Mortgage
Loan in accordance with the terms and conditions of this Agreement, at which
time such funds shall be applied to the Purchase Price of the related Mortgage
Loan and any letter of credit will be returned to the Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than ninety (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 ninety (90)
days from the date that any party to the Pooling and Servicing Agreement
discovers such Document Defect or Breach; provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the applicable Mortgage Loan, the interest of
the Trust Fund therein or the interests of any Certificateholder, cure such
Document Defect or Breach, as the case may be, in all material respects, which
shall include payment of actual or provable losses and any Additional Trust Fund
Expenses directly resulting from any such Document Defect or Breach or, if such
Document Defect or Breach (other than omissions solely due 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 at the applicable
Purchase Price not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the Master Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that unless the Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, and 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, such Seller shall have an additional ninety
(90) days to complete such cure (or, failing such cure, to repurchase or
substitute the related Mortgage Loan); 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 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; provided, further, that no Document Defect (other than with respect to a
Mortgage Note, Mortgage, title insurance policy, Ground Lease, any letter of
credit, any franchise agreement, any comfort letter and (if required) any
comfort letter transfer documents (collectively, the "Core Material Documents"))
shall be considered to materially and adversely affect the value of the related
Mortgage Loan, the interests of the Trust Fund therein or the interests of any
Certificateholder 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 any claim asserted
by any borrower or third party with respect to the Mortgage Loan, establishing
the validity or priority of any lien or any collateral securing the Mortgage
Loan or for any immediate significant servicing obligations; provided, further,
with respect to Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust Fund therein or
the value of the related Mortgage Loan, other than with respect to Document
Defects relating to the Core Material Documents, any applicable cure period
following the initial 90-day cure period may be extended by the Master Servicer
or the Special Servicer if the document involved is not needed imminently. Such
extension will end upon thirty (30) days notice of such need as reasonably
determined by the Master Servicer or Special Servicer (with a possible thirty
(30) day extension if the Master Servicer or Special Servicer agrees that the
Seller is diligently pursuing a cure). The Seller shall cure all Document
Defects which materially and adversely affect the interests of any
Certificateholder, the interests of the Trust Fund therein or the value of the
related Mortgage Loan, regardless of the document involved, no later than two
years following the Closing Date; provided that the initial 90-day cure period
referenced in this paragraph may not be reduced. 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, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure. Notwithstanding the foregoing, the delivery
of a commitment to issue a policy of lender's title insurance as described in
Representation 12 of Schedule I hereof 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 90th
day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable 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 Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining 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 Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies 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 Loans 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 that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
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 otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred in good faith by the Purchaser in connection with such
modification or accommodation (including, but not limited to, recoverable
attorney fees) shall be paid by the Seller.
(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 Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
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 Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, 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 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 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 substituted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to 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. Nothing in this Agreement shall prohibit the
Purchaser or its assigns (including the Master Servicer and/or the Special
Servicer) from pursuing any course of action authorized by the Pooling and
Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the Seller in writing of its
intention to liquidate such Defaulted Mortgage Loan or REO Property at least 45
days prior to any such action. If (a) the Seller consents to such sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or REO Property or
(b) a court of competent jurisdiction determines that the Seller is liable under
this Agreement to repurchase such Defaulted Mortgage Loan or REO Property, then
such Seller shall remit to the Purchaser an amount equal to the difference if
any of the price of such Defaulted Mortgage Loan or REO Property as sold and the
price at which the Seller would have had to repurchase such Defaulted Mortgage
Loan or REO Property under this Agreement. The Seller shall have ten (10)
Business Days after receipt of notice to determine whether or not to consent to
such sale. If the Seller does not consent to such sale, the Special Servicer
shall contract with a Determination Party (as defined in the Pooling and
Servicing Agreement) as to the merits of such proposed sale. If the related
Determination Party determines that such proposed sale is in accordance with the
Servicing Standard and the provisions of the Pooling and Servicing Agreement
with respect to the sale of Defaulted Mortgage Loans and REO Properties and,
subsequent to such sale, a court of competent jurisdiction determines that the
Seller was liable under this Agreement and required to repurchase such Defaulted
Mortgage Loan or REO Property in accordance with the terms hereof, then the
Seller shall remit to the Purchaser an amount equal to the difference (if any)
between the proceeds of the related action and the price at which the Seller
would have been obligated to pay had the Seller repurchased such Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the terms hereof including the costs
related to contracting with the related Determination Party; provided that the
foregoing procedure in this Section 3(f) shall not preclude such Seller from
repurchasing the Defaulted Mortgage Loan or REO Property prior to the execution
of a binding contract of sale with a third party in accordance with the other
provisions of this Section 3 (excluding this Section 3(f)). If the related
Determination Party determines that the sale of the related Defaulted Mortgage
Loan or REO Property is not in accordance with the Servicing Standard and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and the Special Servicer
subsequently sells such Mortgage Loan or REO Property, then the Seller will not
be liable for any such difference (nor any cost of contracting with the
Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
ninety (90) days of the Seller's receipt of such direction, the amount of any
such costs and expenses borne by the Purchaser, the Certificateholders, the
Master Servicer, the Special Servicer and the Trustee on their behalf that are
the basis of such Breach. Upon its making such deposit, the Seller shall be
deemed to have cured such Breach in all respects. Provided such payment is made
in full, this paragraph describes the sole remedy available to the Purchaser,
the Certificateholders, the Master Servicer, the Special Servicer and the
Trustee on their behalf regarding any such Breach and the Seller shall not be
obligated to repurchase the affected Mortgage Loan on account of such Breach or
otherwise cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants 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 North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(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 obligation 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,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) 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.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution, delivery or
performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
require or will require the consent of any third person or constitutes or will
constitute a default under (A) any term or provision of the Purchaser's
certificate of incorporation or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) 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 Price.
(f) 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 its obligations under the terms of this Agreement.
(g) 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 governmental agency or body, which default might have consequences
that would 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 Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina 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) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and 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, the Initial
Purchaser and their respective counsel in their reasonable discretion, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller 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;
and
(f) The letters shall have been received from the independent
accounting firm KPMG LLP, in form satisfactory to the Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus, the Preliminary Prospectus Supplement, the Prospectus
Supplement, the Preliminary Memorandum, and the Memorandum.
Both parties agree to use their best 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) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchaser 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 or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(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 the Initial Purchaser may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Preliminary Prospectus Supplement together with all
other Time of Sale Information delivered prior to the Time of Sale and nothing
has come to his attention that would lead him to believe that the Specified
Portions of the Preliminary Prospectus Supplement together with all other Time
of Sale Information delivered prior to the Time of Sale, 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
of the Prospectus Supplement and nothing has come to his attention that would
lead him to believe that the Specified Portions of the Prospectus Supplement, as
of the date of the Prospectus Supplement, or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage 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, (iii) such officer has
examined the Specified Portions of the Memorandum and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Memorandum, as of the date thereof or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage 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 Preliminary Prospectus Supplement or the Prospectus Supplement,
as applicable, shall consist of Annex A and Annex D thereto, the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with such Annex A) and the following sections of the Preliminary Prospectus
Supplement or the Prospectus Supplement, as applicable (exclusive of any
statements in such sections that purport to summarize the servicing and
administration provisions of the Pooling and Servicing Agreement): "SUMMARY OF
PROSPECTUS SUPPLEMENT--THE PARTIES--The Mortgage Loan Sellers", "SUMMARY OF
PROSPECTUS SUPPLEMENT--THE MORTGAGE LOANS", "RISK FACTORS--The Mortgage Loans",
"DESCRIPTION OF THE MORTGAGE POOL--General", "--Mortgage Loan History",
"--Certain Terms and Conditions of the Mortgage Loans", "--Assessments of
Property Condition", "--Co-Lender Loans", "--Twenty Largest Mortgage Loans",
"--The Sponsors" and "--Nomura Credit & Capital, Inc.--The Mortgage Loan
Sellers". The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement, the first and second full
paragraphs on page "v" of the Memorandum.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the certificate of incorporation and by-laws of
the Seller, and an original or copy of a certificate of good standing of the
Seller issued by the State of Delaware not earlier than sixty (60) days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller (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 Purchaser and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchaser, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon a breach of the representations made by the Seller in Section 3(a)(x)
hereof, (ii) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement,
the Preliminary Memorandum, the Memorandum, the Diskette or in any revision or
amendment of or supplement to any of the foregoing, (B) any Time of Sale
Information or any Issuer Information contained in any Free Writing Prospectus
prepared by or on behalf of the Underwriters (an "Underwriter Free Writing
Prospectus") or contained in any Free Writing Prospectus which is required to be
filed in accordance with the terms of the Underwriting Agreement, (C) any items
similar to Free Writing Prospectuses forwarded by the Seller to the Initial
Purchaser, or in any revision or amendment of or supplement to any of the
foregoing or (D) the summaries, reports, documents and other written and
computer materials and all other information regarding the Mortgage Loans or the
Seller furnished by the Seller for review by prospective investors (the items in
(A), (B), (C) and (D) above being defined as the "Disclosure Material"), or
(iii) arise out of or are based upon the omission or alleged omission to state
therein (in the case of Free Writing Prospectuses, when read in conjunction with
the other Time of Sale Information, in the case of any items similar to Free
Writing Prospectuses, when read in conjunction with the Memorandum) and in the
case of any summaries, reports, documents, written or computer materials, or
other information contemplated in clause (D) above, when read in conjunction
with the Memorandum, and in the case of any Free Writing Prospectus, when read
in conjunction with the other Time of Sale Information, a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; but, with
respect to any Disclosure Material described in clauses (A), (B) and (C) of the
definition thereof, only if and to the extent that (I) any such untrue statement
or alleged untrue statement or omission or alleged omission occurring in, or
with respect to, such Disclosure Material, arises out of or is based upon an
untrue statement or omission with respect to the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties contained in the Data File
(it being herein acknowledged that the Data File was and will be used to prepare
the Preliminary Prospectus Supplement and the Prospectus Supplement, including
without limitation Annex A thereto, any other Time of Sale Information, the
Preliminary Memorandum, the Memorandum and the Diskette with respect to the
Registered Certificates and any items similar to Free Writing Prospectuses
forwarded to prospective investors in the Non-Registered Certificates and any
Free Writing Prospectus), (II) any such untrue statement or alleged untrue
statement or omission or alleged omission of a material fact occurring in, or
with respect to, such Disclosure Material, is with respect to, or arises out of
or is based upon an untrue statement or omission of a material fact with respect
to, the information regarding the Mortgage Loans, the related Mortgagors, the
related Mortgaged Properties and/or the Seller set forth in the Specified
Portions of the Preliminary Prospectus Supplement, the Prospectus Supplement,
the Preliminary Memorandum, or the Memorandum, (III) any such untrue statement
or alleged untrue statement or omission or alleged omission occurring in, or
with respect to, such Disclosure Material, arises out of or is based upon a
breach of the representations and warranties of the Seller set forth in or made
pursuant to Section 3 hereof or (IV) any such untrue statement or alleged untrue
statement or omission or alleged omission occurring in, or with respect to, such
Disclosure Material, arises out of or is based upon any other written
information concerning the characteristics of the Mortgage Loans, the related
Mortgagors or the related Mortgaged Properties furnished to the Purchaser, the
Underwriters or the Initial Purchaser by the Seller; provided, that the
indemnification provided by this Section 7 shall not apply to the extent that
such untrue statement or omission of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Preliminary Prospectus Supplement or the Prospectus Supplement to
the extent such information was not materially incorrect in the Data File or
such Annex A, as applicable, including without limitation the aggregation of
such information with comparable information relating to the Other Mortgage
Loans. Notwithstanding the foregoing, the indemnification provided in this
Section 7(a) shall not inure to the benefit of any Underwriter or Initial
Purchaser (or to the benefit of any person controlling such Underwriter or
Initial Purchaser) from whom the person asserting claims giving rise to any such
losses, claims, damages, expenses or liabilities purchased Certificates if (x)
the subject untrue statement or omission or alleged untrue statement or omission
made in any Disclosure Material (exclusive of the Prospectus or any corrected or
amended Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum or, with respect to
any Time of Sale Information only, by the delivery of a Corrected Free Writing
Prospectus prior to the Time of Sale (in each case, as corrected or amended, if
applicable), as applicable, and (y) a copy of the Prospectus, Memorandum or
Corrected Free Writing Prospectus (in each case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the Time of Sale of such Certificates, and (z) in the case of a corrected or
amended Prospectus, Memorandum or Corrected Free Writing Prospectus, such
Underwriter or Initial Purchaser received electronically or in writing notice of
such untrue statement or omission and updated information concerning the untrue
statement or omission at least one Business Day prior to the Time of Sale. The
Seller shall, subject to clause (c) below, reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-131262 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus, dated October
19, 2006, as supplemented by the prospectus supplement, dated August 10, 2007
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the free writing
prospectus, dated July 31, 2007, consisting of the preliminary free writing
prospectus, including the base prospectus, dated October 19, 2006 attached
thereto, as supplemented and corrected by that certain free writing prospectus,
dated August 9, 2007; "Preliminary Memorandum" shall mean the preliminary
private placement memorandum, dated August 9, 2007, relating to the
Non-Registered Certificates, including all annexes thereto; "Memorandum" shall
mean the private placement memorandum, dated August 10, 2007, relating to the
Non-Registered Certificates, including all exhibits thereto; "Registered
Certificates" shall mean the Class A-1, Class A-2, Class A-3, Class A-PB, Class
A-4, Class A-5, Class A-1A, Class IO, Class A-M, Class A-J, Class B, Class C,
Class D, Class E and Class F Certificates; "Non-Registered Certificates" shall
mean the Certificates other than the Registered Certificates; "Diskette" shall
mean the diskette or compact disc attached to each of the Preliminary Prospectus
Supplement, the Prospectus, and the Memorandum; and "Data File" shall mean the
compilation of information and data regarding the Mortgage Loans covered by the
Agreed Upon Procedures Letters, dated August 22, 2007 and rendered by KPMG LLP
(a "hard copy" of which Data File was initialed on behalf of the Seller and the
Purchaser). "Free Writing Prospectus" shall mean a "free writing prospectus" as
such term is defined pursuant to Rule 405 under the 1933 Act. "Corrected Free
Writing Prospectus" shall mean a Free Writing Prospectus that corrects any
previous Free Writing Prospectus prepared by or on behalf of any Underwriter and
delivered to any purchaser that contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading. "Time of Sale" shall mean the time at which sales to
investors of the Certificates were first made as determined in accordance with
Rule 159 of the 1933 Act. "Time of Sale Information" shall mean each free
writing prospectus listed on Exhibit B hereto. "Issuer Information" shall have
the meaning given to such term in Rule 433(h) under the 1933 Act (as discussed
by the Securities and Exchange Commission (the "Commission") in footnote 271 of
the Commission's Securities Offering Reform Release No. 33--8591). "Regulation
AB" shall have the meaning as defined in Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123 of the 1933 Act,
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.
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than forty-five (45) days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying party assumes
the defense of any proceeding, it shall be entitled to settle such proceeding
with the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates, less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchaser's obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchaser, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchaser and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchaser and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Nomura Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus, Term Sheet, Preliminary Prospectus
Supplement, each other Free Writing Prospectus, Preliminary Memorandum, and
Memorandum relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iv) the filing
fee charged by the Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
any Free Writing Prospectus, the Prospectus Supplement, the Preliminary
Memorandum, and the Memorandum, including in respect of the cost of obtaining
any "comfort letters" with respect to such items; (vii) the reasonable
out-of-pocket costs and expenses in connection with the qualification or
exemption of the Certificates under state securities or "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Underwriters or Initial Purchaser; provided,
however, Seller shall pay (or shall reimburse the Purchaser to the extent that
the Purchaser has paid) the expense of recording any assignment of Mortgage or
assignment of Assignment of Leases as contemplated by Section 2 hereof with
respect to the Seller's Mortgage Loans. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 9. 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 hereof 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 Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof 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, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) 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 hereof 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 Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the Preliminary
Prospectus Supplement, the final form of the Memorandum, and the final form of
the Prospectus Supplement) promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. 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 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. 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 15. GOVERNING LAW. 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, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. 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 which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which 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 17. 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 18. 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 and the Initial Purchaser (each as intended third
party beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, the Initial Purchaser and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. 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, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG 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.
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
------
NOMURA CREDIT & CAPITAL, INC.
By: /s/ N. Xxxxx XxXxxxx
-----------------------------------
Name: N. Xxxxx XxXxxxx
Title: Managing Director
Address for Notices:
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
---------
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
General Mortgage Representations and Warranties
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in connection
with such Mortgage Loan is a legal, valid and binding obligation of the
related Mortgagor (subject to any non-recourse provisions therein and any
state anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except (a) that certain
provisions contained in such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or federal laws,
but neither the application of any such laws to any such provision nor the
inclusion of any such provisions renders any of the Mortgage Loan
documents invalid as a whole and such Mortgage Loan documents taken as a
whole are enforceable to the extent necessary and customary for the
practical realization of the rights and benefits afforded thereby and (b)
as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or other
laws affecting the enforcement of creditors' rights generally, or by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The related Mortgage Note
and Mortgage contain no provision limiting the right or ability of the
Seller to assign, transfer and convey the related Mortgage Loan to any
other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, 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.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to the exceptions set forth in
Representation (5) above and the following title exceptions (each such
title exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in Representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases) and (f) if such Mortgage Loan is a
Crossed Loan, the lien of the Mortgage for such other Mortgage Loan, none
of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary, at the time of the origination
of the Mortgage Loan, to perfect a valid security interest in all items of
personal property located on the Mortgaged Property that are owned by the
Mortgagor and either (i) are reasonably necessary to operate the Mortgaged
Property or (ii) are (as indicated in the appraisal obtained in connection
with the origination of the related Mortgage Loan) material to the value
of the Mortgaged Property (other than any personal property subject to a
purchase money security interest or a sale and leaseback financing
arrangement permitted under the terms of such Mortgage Loan or any other
personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording
or filing, and the Mortgages, security agreements, chattel Mortgages or
equivalent documents related to and delivered in connection with the
related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws
affecting the enforcement of creditor's rights generally, or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law). Notwithstanding any of the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession
or control of such items or actions other than the filing of UCC Financing
Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the Seller,
each related Mortgaged Property was free and clear of any material damage
(other than deferred maintenance for which escrows were established at
origination) that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and to the Seller's
actual knowledge as of the Cut-Off Date there was no proceeding pending
for the total or partial condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the original
principal amount of such Mortgage Loan after all advances of principal (as
set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable without consent of the insurer and will inure to
the benefit of the Trustee as mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; such policy contains
no material exclusions for, or affirmatively insures (except for any
Mortgaged Property located in a jurisdiction where such insurance is not
available) (a) access to a public road (except as provided below) or (b)
against any loss due to encroachments of any material portion of the
improvements thereon.
13. Except as provided below, as of the date of its origination, all insurance
coverage required under each related Mortgage, which insurance covered
such risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, and with respect to a fire
and extended perils insurance policy, is in an amount (subject to a
customary deductible) at least equal to the lesser of (i) the replacement
cost of improvements located on such Mortgaged Property, or (ii) the
initial principal balance of the Mortgage Loan, and in any event, the
amount necessary to prevent operation of any co-insurance provisions; and,
except if such Mortgaged Property is operated as a mobile home park, is
also covered by business interruption or rental loss insurance, in an
amount at least equal to 12 months of operations of the related Mortgaged
Property (or in the case of a Mortgaged Property without any elevator, 6
months), all of which was in full force and effect with respect to each
related Mortgaged Property; and, except as provided below, as of the
Cut-Off Date, to the actual knowledge of the Seller, all insurance
coverage required under each Mortgage, which insurance covers such risks
and is in such amounts as are customarily acceptable to prudent commercial
and multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, is in full force and effect
with respect to each related Mortgaged Property; all premiums due and
payable through the Closing Date have been paid; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller; and except for certain amounts not greater
than amounts which would be considered prudent by an institutional
commercial and/or multifamily mortgage lender with respect to a similar
Mortgage Loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss, will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property or (ii) the reduction of the outstanding principal balance of the
Mortgage Loan, subject in either case to requirements with respect to
leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent institutional lenders for similar
loans. The Mortgaged Property is also covered by comprehensive general
liability insurance against claims for personal and bodily injury, death
or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect to
non-payment, 10 days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee
to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so.
14. Except as provided below, (a) other than payments due but not yet 30 days
or more delinquent, to the Seller's actual knowledge, based upon due
diligence customarily performed with the servicing of comparable mortgage
loans by prudent institutional lenders, there is no material default,
breach, violation or event of acceleration existing under the related
Mortgage or the related Mortgage Note, and to the Seller's actual
knowledge no event (other than payments due but not yet delinquent) which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration, provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty made by
the Seller in any paragraphs of this Schedule I or in any paragraph of
Schedule II, and (b) the Seller has not waived any material default,
breach, violation or event of acceleration under such Mortgage or Mortgage
Note, except for a written waiver contained in the related Mortgage File
being delivered to the Purchaser, and pursuant to the terms of the related
Mortgage or the related Mortgage Note and other documents in the related
Mortgage File no Person or party other than the holder of such Mortgage
Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage.
18. Each Mortgage Loan is directly secured by a Mortgage on a commercial
property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (b) 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 the Mortgage Loan (i)
as of the Testing Date, or (ii) as of the Closing Date. For purposes of
the previous sentence, (A) 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 on a parity with the Mortgage Loan, and (B) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was
originated unless (1) such Mortgage Loan was modified after the date of
its origination in a manner that would cause a "significant modification"
of such Mortgage Loan within the meaning of Treasury Regulations Section
1.1001-3(b), and (2) such "significant modification" did not occur at a
time when such Mortgage Loan was in default or when default with respect
to such Mortgage Loan was reasonably foreseeable. However, if the
referenced Mortgage Loan has been subjected to a "significant
modification" after the date of its origination and at a time when such
Mortgage Loan was not in default or when default with respect to such
Mortgage Loan was not reasonably foreseeable, the Testing Date shall be
the date upon which the latest such "significant modification" occurred.
The Mortgage Loan documents with respect to each Defeasance Loan do not
allow such Defeasance Loan to be defeased prior to two years after the
Startup Day.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow greater than 100% of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
Mortgagor has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the Mortgagor has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, redemption, liquidation or similar law affecting
the right of creditors and the application of principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged Property
is the subject of, any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the Co-Lender
Loans) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. Subject to certain exceptions, which are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property, each
related Mortgage or loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of the Mortgage
or loan agreement, (a) the related Mortgaged Property, or any controlling
interest in the related Mortgagor, is directly transferred or sold (other
than by reason of family and estate planning transfers, transfers by
devise, descent or operation of law upon the death of a member, general
partner or shareholder of the related Mortgagor and transfers of less than
a controlling interest in a mortgagor, issuance of non-controlling new
equity interests, transfers among existing members, partners or
shareholders in the Mortgagor or an affiliate thereof, transfers among
affiliated Mortgagors with respect to Crossed Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting
the requirements of the Mortgage Loan (such as pledges of ownership
interests that do not result in a change of control) or a substitution or
release of collateral within the parameters of Representation (26) below),
or (b) the related Mortgaged Property is encumbered in connection with
subordinate financing by a lien or security interest against the related
Mortgaged Property, other than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage.
25. Except as provided below, each related Mortgaged Property was inspected by
or on behalf of the related originator or an affiliate during the 12 month
period prior to the related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit
defeasance by means of substituting for the Mortgaged Property (or, in the
case of a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" as defined in
the Investment Company Act of 1940, as amended, sufficient to pay the
Mortgage Loans (or portions thereof) in accordance with their terms, (b)
where a release of the portion of the Mortgaged Property was contemplated
at origination and such portion was not considered material for purposes
of underwriting the Mortgage Loan, (c) where release is conditional upon
the satisfaction of certain underwriting and legal requirements and the
payment of a release price that represents adequate consideration for such
Mortgaged Property or the portion thereof that is being released, or (d)
which permit the related Mortgagor to substitute a replacement property in
compliance with REMIC Provisions or (e) which permit the release(s) of
unimproved out-parcels or other portions of the Mortgaged Property that
will not have a material adverse affect on the underwritten value of the
security for the Mortgage Loan or that were not allocated to any value in
the underwriting during the origination of the Mortgage Loan, the terms of
the related Mortgage do not provide for release of any portion of the
Mortgaged Property from the lien of the Mortgage except in consideration
of payment in full therefor.
27. Except as provided below, to the Seller's actual knowledge, based upon a
letter from governmental authorities, a legal opinion, an endorsement to
the related title policy, or based upon other due diligence considered
reasonable by prudent commercial conduit mortgage lenders in the area
where the applicable Mortgaged Property is located, as of the date of
origination of such Mortgage Loan and as of the Cut-Off Date, there are no
material violations of any applicable zoning ordinances, building codes
and land laws applicable to the Mortgaged Property or the use and
occupancy thereof which (a) are not insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance
policy or (b) would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. With respect to at least 95% of such Seller's Mortgage Loans (by balance)
having a Cut-Off Date Balance in excess of 1% of the Initial Pool Balance,
the related Mortgagor has covenanted in its organizational documents
and/or the Mortgage Loan documents to own no significant asset other than
the related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged
Property, and to hold itself out as being a legal entity, separate and
apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or was exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan that is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with
respect to such improvements and such policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property, and, as of the Cut-Off
Date, the Seller has no actual knowledge that the related Mortgagor, the
related lessee, franchisor or operator was not in possession of such
licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. Except as provided below, the Mortgage Loan documents for each Mortgage
Loan provide that each Mortgage Loan is non-recourse to the related
Mortgagor except that the related Mortgagor accepts responsibility for
fraud and/or other intentional material misrepresentation. Furthermore,
except as provided below, the Mortgage Loan documents for each Mortgage
Loan provide that the related Mortgagor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of rents
collected in advance or received by the related Mortgagor after the
occurrence of an event of default and not paid to the Mortgagee or applied
to the Mortgaged Property in the ordinary course of business,
misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. Subject to the exceptions set forth in Representation (5), the Assignment
of Leases set forth in the Mortgage or separate from the related Mortgage
and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the real
property.
42. With respect to such Mortgage Loan, any Prepayment Premium or Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date, and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. In addition, if such Mortgage
contains such a defeasance provision, it provides (or otherwise contains
provisions pursuant to which the holder can require) that an opinion be
provided to the effect that such holder has a first priority perfected
security interest in the defeasance collateral. The related Mortgage Loan
documents permit the lender to charge all of its expenses associated with
a defeasance to the Mortgagor (including rating agencies' fees, accounting
fees and attorneys' fees), and provide that the related Mortgagor must
deliver (or otherwise, the Mortgage Loan documents contain certain
provisions pursuant to which the lender can require) (a) an accountant's
certification as to the adequacy of the defeasance collateral to make
payments under the related Mortgage Loan for the remainder of its term,
(b) an Opinion of Counsel that the defeasance complies with all applicable
REMIC Provisions, and (c) assurances from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or qualification
of the ratings assigned to the Certificates. Notwithstanding the
foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the Mortgage Loan
documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the after the Cut-Off
Date of the related Mortgage Loan).
47. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
the guidelines in Title XI of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as in effect on the date such Mortgage Loan
was originated.
48. With respect to each Mortgage Loan secured in whole or in material part by
a leasehold interest (except with respect to any Mortgage Loan also
secured by a fee interest in the related Mortgaged Property), the Seller
represents and warrants the following with respect to the related Ground
Lease:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than 30 days after the Closing Date and such Ground Lease
permits the interest of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date.
(b) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee under the leasehold estate and its assigns without
the consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Closing Date).
(c) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors or
assigns, except termination or cancellation if (a) an event of default occurs
under the Ground Lease, (b) notice thereof is provided to the mortgagee and (c)
such default is curable by the mortgagee as provided in the Ground Lease but
remains uncured beyond the applicable cure period.
(d) To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due but not yet
30 days or more delinquent, (a) there is no material default, and (b) there is
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default under such Ground
Lease.
(e) The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee to
the mortgagee. The Ground Lease or ancillary agreement further provides that no
notice given is effective against the mortgagee unless a copy has been given to
the mortgagee in a manner described in the Ground Lease or ancillary agreement.
(f) The Ground Lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or (b) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Mortgaged Property is subject.
(g) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the Ground Lease) to cure any curable default under such Ground
Lease before the lessor thereunder may terminate such Ground Lease.
(h) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the lessee's
rights under the Ground Lease) that extends not less than 20 years beyond the
Stated Maturity Date.
(i) Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment or defeasance of the outstanding principal balance of the Mortgage Loan,
together with any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any commercial mortgage
lender, taking into account the relative duration of the Ground Lease and the
related Mortgage and the ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of such Mortgage Loan).
(j) The Ground Lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
lender.
(k) The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason, including
the rejection of the Ground Lease in bankruptcy.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
WBCMT 2007 C-33
SCHEDULE OF EXCEPTIONS TO REPRESENTATION AND WARRANTIES
Representation #3
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Xxxxx MHC A second lien of $320,000 is secured by
the property, subject to the terms of an
intercreditor agreement.
--------------------------------------------------------------------------------
Sawgrass Mall The related Mortgaged Property also
secures other pari passu notes in the
aggregate original principal balance
of $554,705,882.34.
There is $30,000,000 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Deerwood MHP I There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Deerwood MHP II There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Representation #8
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Building Lender provided in the loan documents the
ability for the Borrower to procure
mezzanine debt after the expiration of the
Lockout Period to be secured by the equity
interests of the Borrower. The combined LTV
of the existing loan and the Mezzanine
Loan, based on a then current appraisal,
shall not exceed 77.5%, and the DSCR at the
time of the request for the Mezzanine Loan,
based on the Underwritten Net Cashflow,
using Borrower certified operating
statements shall be not less than 1.15 to 1
based on the senior mortgage actual debt
service plus the proposed mezzanine debt
service. In connection with such Mezzanine
Loan, the Lender and the mezzanine lender
shall enter into an intercreditor agreement
acceptable to Lender and consistent with
Rating Agency guidelines, and Lender at its
discretion may require a Rating
Confirmation (unless the mezzanine lender
is a Qualified Transferee, as defined in
the intercreditor agreement) at the time
the Mezzanine Loan is placed and a new
non-consolidation opinion of counsel.
--------------------------------------------------------------------------------
Xxxxx MHC A second lien of $320,000 is secured by
the property, subject to the terms of an
intercreditor agreement.
--------------------------------------------------------------------------------
Independence The Sponsor is permitted to incur future
Mall mezzanine indebtedness. The loan servicer
will not have discretion to approve of any
such indebtedness as long as (a) the total
LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not
fall below 1.05x, (c) the mezzanine lender
meets a pre-determine definition of
"qualified lender", (d) the mezzanine loan
shall be coterminous or mature subsequent to
the mortgage loan and (e) the mezzanine
lender shall enter into a form of
inter-creditor agreement.
--------------------------------------------------------------------------------
Sawgrass Xxxxx The related Mortgaged Property also secures
other pari passu notes in the aggregate
original principal balance of
$554,705,882.34.
There is $30,000,000 of existing B Note
subject to the terms of an intercreditor
agreement.
Borrower is permitted to incure future
mezzanine indebtedness subject to certain
conditions, but not limited to: (i) No Event
of Default, (ii) combined LTV of not more
than 85%, (iii) combined DSCR of 1.05x or
more and (iv) intercreditor agreement.
--------------------------------------------------------------------------------
Deerwood MHP I There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Deerwood MHP II There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Representation #11
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Forest Rim The borrower plans to spend approximately
Apartments $2 million on property renovations ($6,667
per unit) primarily for interior
improvements. Interior upgrades/renovations
will include countertop resurfacing/
painting, 6-panel doors, new tile at entry
and fireplace surroundings, an over the
range microwave, and new appliances.
--------------------------------------------------------------------------------
Rite Aid - Erie, An immediate repair reserve was not collected
PA, Sawgrass at closing.
Xxxxx, Yukon
Apartments
--------------------------------------------------------------------------------
Representation #13
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
All Nomura Loans Nomura generally requires an AM Best rating
of A:IX.
--------------------------------------------------------------------------------
Capri MHP Because the Property is a mobile home park,
Lender agreed to accept insurance coverage
actual for cash value and not full
replacement cost. A non-recourse carve-out
was added to the loan documents making
Borrower and Guarantor liable for any
losses resulting from the Improvements
being insured by Borrower at actual cash
value rather than full replacement cost.
--------------------------------------------------------------------------------
Forest Rim Borrower shall not be required to incur a
Apartments cost for the annual premium for terrorism
insurance that exceeds (i) if such
terrorism coverage is provided in the form
of a blanket policy of insurance under
Borrower's blanket policy covering the
Property, $50,000 or (ii) if such terrorism
coverage is not provided in the form of a
blanket policy of insurance covering the
Property, $75,000.
--------------------------------------------------------------------------------
Independence If syndicate of 5 or more insurers, 60% "A",
Mall, Sawgrass remainder "BBB".
Xxxxx
--------------------------------------------------------------------------------
Rite Aid - Erie, Tenant may self insure.
PA
Borrower may elect not to obtain loss of
rents or loss of business income insurance so
long as Borrower and the Guarantor of the
loan each remain personally liable for losses
to Lender as provided for in the Loan
Documents.
Borrower may elect not to obtain insurance to
cover the perils of terrorism so long as
Borrower and the Guarantor of the loan each
remain personally liable for losses to Lender
as provided for in the Loan Documents.
--------------------------------------------------------------------------------
Representation #17
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Building Lender provided in the loan documents the
ability for the Borrower to procure
mezzanine debt after the expiration of the
Lockout Period to be secured by the equity
interests of the Borrower. The combined LTV
of the existing loan and the Mezzanine
Loan, based on a then current appraisal,
shall not exceed 77.5%, and the DSCR at the
time of the request for the Mezzanine Loan,
based on the Underwritten Net Cashflow,
using Borrower certified operating
statements shall be not less than 1.15 to 1
based on the senior mortgage actual debt
service plus the proposed mezzanine debt
service. In connection with such Mezzanine
Loan, the Lender and the mezzanine lender
shall enter into an intercreditor agreement
acceptable to Lender and consistent with
Rating Agency guidelines, and Lender at its
discretion may require a Rating
Confirmation (unless the mezzanine lender
is a Qualified Transferee, as defined in
the intercreditor agreement) at the time
the Mezzanine Loan is placed and a new
non-consolidation opinion of counsel.
--------------------------------------------------------------------------------
Xxxxx MHC A second lien of $320,000 is secured by
the property, subject to the terms of an
intercreditor agreement.
--------------------------------------------------------------------------------
Independence The Sponsor is permitted to incur future
Mall mezzanine indebtedness. The loan servicer
will not have discretion to approve of any
such indebtedness as long as (a) the total
LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not
fall below 1.05x, (c) the mezzanine lender
meets a pre-determine definition of
"qualified lender", (d) the mezzanine loan
shall be coterminous or mature subsequent to
the mortgage loan and (e) the mezzanine
lender shall enter into a form of
inter-creditor agreement.
--------------------------------------------------------------------------------
Sawgrass Xxxxx The related Mortgaged Property also secures
other pari passu notes in the aggregate
original principal balance of
$554,705,882.34.
There is $30,000,000 of existing B Note
subject to the terms of an intercreditor
agreement.
Borrower is permitted to incure future
mezzanine indebtedness subject to certain
conditions, but not limited to: (i) No Event
of Default, (ii) combined LTV of not more
than 85%, (iii) combined DSCR of 1.05x or
more and (iv) intercreditor agreement.
--------------------------------------------------------------------------------
Deerwood MHP I There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Deerwood MHP II There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Representation #22
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Building Lender provided in the loan documents the
ability for the Borrower to procure
mezzanine debt after the expiration of the
Lockout Period to be secured by the equity
interests of the Borrower. The combined LTV
of the existing loan and the Mezzanine
Loan, based on a then current appraisal,
shall not exceed the actual LTV at the time
of Loan closing, and the DSCR at the time
of the request for the Mezzanine Loan,
based on the Underwritten Net Cashflow,
using Borrower certified operating
statements shall be not less than 1.15 to 1
based on the senior mortgage actual debt
service plus the proposed mezzanine debt
service. In connection with such Mezzanine
Loan, the Lender and the mezzanine lender
shall enter into an intercreditor agreement
acceptable to Lender and consistent with
Rating Agency guidelines, and Lender at its
discretion may require a Rating
Confirmation (unless the mezzanine lender
is a Qualified Transferee, as defined in
the intercreditor agreement) at the time
the Mezzanine Loan is placed and a new
non-consolidation opinion of counsel.
--------------------------------------------------------------------------------
Independence The Sponsor is permitted to incur future
Mall mezzanine indebtedness. The loan servicer
will not have discretion to approve of any
such indebtedness as long as (a) the total
LTV ration does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not
fall below 1.05x, (c) the mezzanine lender
meets a pre-determine definition of
"qualified lender", (d) the mezzanine loan
shall be coterminous or mature subsequent to
the mortgage loan and (e) the mezzanine
lender shall enter into a form of
inter-creditor agreement.
--------------------------------------------------------------------------------
Sawgrass Xxxxx Borrower is permitted to incure future
mezzanine indebtedness subject to certain
conditions, but not limited to: (i) No Event
of Default, (ii) combined LTV of not more
than 85%, (iii) combined DSCR of 1.05x or
more and (iv) intercreditor agreement.
--------------------------------------------------------------------------------
Representation #23
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Building Lender provided in the loan documents the
ability for the Borrower to procure
mezzanine debt after the expiration of the
Lockout Period to be secured by the equity
interests of the Borrower. The combined LTV
of the existing loan and the Mezzanine
Loan, based on a then current appraisal,
shall not exceed 77.5%, and the DSCR at the
time of the request for the Mezzanine Loan,
based on the Underwritten Net Cashflow,
using Borrower certified operating
statements shall be not less than 1.15 to 1
based on the senior mortgage actual debt
service plus the proposed mezzanine debt
service. In connection with such Mezzanine
Loan, the Lender and the mezzanine lender
shall enter into an intercreditor agreement
acceptable to Lender and consistent with
Rating Agency guidelines, and Lender at its
discretion may require a Rating
Confirmation (unless the mezzanine lender
is a Qualified Transferee, as defined in
the intercreditor agreement) at the time
the Mezzanine Loan is placed and a new
non-consolidation opinion of counsel.
--------------------------------------------------------------------------------
Forest Rim The following transfers shall not be deemed
Apartments to be a Transfer:
(i) the sale or transfer, in one or series
of transactions, of not more than 49% of
the stock or membership interest in a
Restricted Party; provided, however, no
such sales or transfers shall result in the
change of voting control in the Restricted
Party, and as a condition to each such sale
or transfer, Lender shall receive not less
than 30 days prior notice of such proposed
sale or transfer, (ii) the sale or
transfer, in one or a series of
transactions, of not more than 49% of (a)
the limited partnership interests or
non-managing membership interests (as the
case may be) in a Restricted Party, or (b)
the managing membership interests in a
Restricted Party to an existing member of
such Restricted Party or an Affiliate
thereof, provided, however, no such sales
or transfers in the aggregate shall result
in the change of voting control in any
Restricted Party, and as a condition to
each such sale or transfer, Lender shall
receive not less than 10 business days
prior notice of such proposed sale or
transfer, (iii) any involuntary transfer
caused by the death of Borrower or general
partner, shareholder, joint venturer, or
beneficial owner of a trust shall not be a
default under this Security Instrument so
long as Borrower is reconstituted, if
required, following such death and so long
as those persons responsible for the
management of Borrower and the Property
remain unchanged as a result of such death
or any replacement management is approved
by Lender, (iv) gifts for estate planning
purposes of any individual's interest in
Borrower or in any of Borrower's general
partners, managing members or joint
venturers to the spouse or any lineal
descendant of such individual, or to a
trust for the benefit of any one or more of
such individuals, spouse or any lineal
descendants, shall not be an Event of
Default so long as Borrower is
reconstituted, if required, following such
gift and so long as those persons
responsible for the management of Borrower
and the Property remain unchanged as a
result of such gift or any replacement
management is approved by Lender, (v)
transfers of up to 49% of the membership
interests in Borrower so long as either (x)
GEAM Value Add Realty Partners, LP or its
respective principals directly or
indirectly continue to own the remaining
51% of such membership interests in
Borrower or (y) such sale is to a Qualified
Transferee and a non-consolidation opinion
that satisfies the requirements of the
Rating Agencies is provided to Lender.
Notwithstanding anything to the contrary
provided elsewhere herein, (x) GEAM shall
have the right to make an unlimited number
of transfers of its direct or indirect
ownership interests in Borrower and (y)
direct or indirect partnership transfers of
limited partnership interests in GEAM shall
be permitted, in the case of clauses (x)
and (y) of this sentence without the
consent or approval of Lender, for as long
as GEAM Realty Management, LLC, GE Asset
Management Incorporated or an affiliate of
the foregoing remains general partner of
GEAM or any successor or assign.
--------------------------------------------------------------------------------
Xxxxx MHC, Provided that there is no change of control
Knollwood MHC, of Borrower, current interest holders of
Northgate MHC Xxxxx, Northgate or Knollwood shall have the
right (a) to transfer their interest in
Xxxxx, Northgate or Knollwood for bona fide
estate planning purposes to immediate
Family Members or (b) to a trust or family
limited partnership or limited liability
company, the holders of the beneficial
interest in which are an Interest Holder or
an Immediate Family Member. The term
"Immediate Family Member" shall mean a
spouse, a child or grandchild of any
Interest Holder. Additionally, if the
transfer of an ownership interest in or
change in control of Borrower prohibited by
the foregoing results from death or
incapacitation of a Principal who is an
individual and if the transferee or
subsequently controlling party, as
applicable, has the credit worthiness and
management ability which are satisfactory
to Lender in its sole and absolute
discretion, such transfer or change in
control shall be permitted and in the event
the successor control person is not
currently a Principal, shall be deemed so
upon the execution of a written assumption
agreement containing such terms as Lender
may require.
--------------------------------------------------------------------------------
Independence The Sponsor is permitted to incur future
Mall mezzanine indebtedness. The loan servicer
will not have discretion to approve of any
such indebtedness as long as (a) the total
LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not
fall below 1.05x, (c) the mezzanine lender
meets a pre-determine definition of
"qualified lender", (d) the mezzanine loan
shall be coterminous or mature subsequent to
the mortgage loan and (e) the mezzanine
lender shall enter into a form of
inter-creditor agreement.
Transfer permitted to institution with net
worth of at least $400 million and real
estate assets of at least $250 million.
--------------------------------------------------------------------------------
Xxxxxx Legacy During a "Subscription Period" of 180 days
following the closing of the loan,
Sagebrush Legacy Apartments, LLC ("Sponsor
TIC") may transfer up to 99% of the total
ownership interests in the property to
separate, single-purpose, bankruptcy remote
entities, (ii) no more than 34 TICs may
acquire an interest in the Property in
addition to Sponsor TIC, (iii) Assumptions
by the TICs are subject to the standard
requirements and approval by Lender except
that no Assumption Dee is due during the
Subscription Period, (iv) one TIC must be
appointed the notice party for all TICs
under the TIC agreement, (v) additional
TICs are required to enter or assume the
TIC Agreement and Master Lease, and (vi)
all TICs are required to waive the right to
partition the Property.
Additionally, following the Subscription
Period, (i) all the TICs may transfer the
Property to a qualified buyer meeting all
of the standard transfer and assumption
requirements, (ii) each may on a one-time
basis transfer its interest in the Property
to a TIC meeting Lender's standard
requirements except that the Assumption Fee
shall be 1% pro-rated based on the
transferring TIC's percentage interest in
the Property and (iii) all the TICs acting
together may enter into a defeasance of the
loan subject to the standard requirements
for Defeasance.
--------------------------------------------------------------------------------
Sawgrass Xxxxx The related Mortgaged Property also secures
other pari passu notes in the aggregate
original principal balance of
$554,705,882.34.
Borrower is permitted to incure future
mezzanine indebtedness subject to certain
conditions, but not limited to: (i) No Event
of Default, (ii) combined LTV of not more
than 85%, (iii) combined DSCR of 1.05x or
more and (iv) intercreditor agreement.
Transfers permitted to institution with net
worth of at least $400 million and real
estate assets of at least $250 million.
--------------------------------------------------------------------------------
Hidden Acres MHP Lender's consent to the identity of the Buyer
is not required when the sale is by one TIC
to one of the other TICs as permitted in
the TIC agreement
--------------------------------------------------------------------------------
Representation #26
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Independence The Loan Documents provide for the Borrower's
Mall ability to get a release from the lien of the
mortgage non-income producing portions of
the property and air rights of the
property, subject to (i) no Material
Adverse Effect on value or operation, (ii)
compliance with law, including zoning,
(iii) delivery of a REMIC opinion, (iv) no
breach of major leases or reciprocal
easement agreements.
--------------------------------------------------------------------------------
Northgate MHC Lender agrees to release certain unimproved
portion of the Property from the Lien of
the Loan Documents subject to Partial
Release provisions (i.e. no Event of
Default and the remaining portion of the
Property that is not being released shall
(i) comply with all applicable Legal
Requirements (including all applicable
subdivision, zoning, and land use laws),
(ii) the Release Property shall be owned by
a separate entity and shall be a separate
tax parcel and not be subject to any Liens
for tax attributable to the Release
Property, and (iii) benefit from
appropriate appurtenant easements for,
among other things, access, circulation,
utilities, and parking as necessary or
appropriate for the continued use and
operation of the Property as is currently
being used or as contemplated, all to the
reasonable satisfaction of Lender).
--------------------------------------------------------------------------------
Sawgrass Xxxxx The Loan Documents provide for the Borrower's
ability to get a release from the lien of
the mortgage non-income producing portions
of the property and air rights of the
property, subject to (i) no Material
Adverse Effect on value or operation, (ii)
compliance with law, including, zoning,
(iii) delivery of a REMIC opinion, and (iv)
no breach of major leases or reciprocal
easement agreements.
--------------------------------------------------------------------------------
Representation #34
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Sawgrass Xxxxx The related Mortgaged Property also secures
other pari passu notes in the aggregate
original principal balance of
$554,705,882.34.
--------------------------------------------------------------------------------
Representation #40
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Only the Mortgagor is liable for the
Building, Forest carveouts.
Rim Apartments,
Independence
Mall, Sawgrass
Xxxxx
--------------------------------------------------------------------------------
Xxxxxx Legacy, Liability for each tenant-in-common is
Hidden Acres MHP limited to their respective contribution.
--------------------------------------------------------------------------------
Representation #46
--------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------------------------------------------------------------------------
Exchange Building Lender provided in the loan documents the
ability for the Borrower to procure
mezzanine debt after the expiration of the
Lockout Period to be secured by the equity
interests of the Borrower. The combined LTV
of the existing loan and the Mezzanine
Loan, based on a then current appraisal,
shall not exceed 77.5%, and the DSCR at the
time of the request for the Mezzanine Loan,
based on the Underwritten Net Cashflow,
using Borrower certified operating
statements shall be not less than 1.15 to 1
based on the senior mortgage actual debt
service plus the proposed mezzanine debt
service. In connection with such Mezzanine
Loan, the Lender and the mezzanine lender
shall enter into an intercreditor agreement
acceptable to Lender and consistent with
Rating Agency guidelines, and Lender at its
discretion may require a Rating
Confirmation (unless the mezzanine lender
is a Qualified Transferee, as defined in
the intercreditor agreement) at the time
the Mezzanine Loan is placed and a new
non-consolidation opinion of counsel.
--------------------------------------------------------------------------------
Xxxxx MHC A second lien of $320,000 is secured by
the property, subject to the terms of an
intercreditor agreement.
--------------------------------------------------------------------------------
Independence The Sponsor is permitted to incur future
Mall mezzanine indebtedness. The loan servicer
will not have discretion to approve of any
such indebtedness as long as (a) the total
LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not
fall below 1.05x, (c) the mezzanine lender
meets a pre-determine definition of
"qualified lender", (d) the mezzanine loan
shall be coterminous or mature subsequent to
the mortgage loan and (e) the mezzanine
lender shall enter into a form of
inter-creditor agreement.
--------------------------------------------------------------------------------
Sawgrass Xxxxx The related Mortgaged Property also secures
other pari passu notes in the aggregate
original principal balance of
$554,705,882.34.
There is $30,000,000 of existing B Note
subject to the terms of an intercreditor
agreement.
Borrower is permitted to incure future
mezzanine indebtedness subject to certain
conditions, but not limited to: (i) No Event
of Default, (ii) combined LTV of not more
than 85%, (iii) combined DSCR of 1.05x or
more and (iv) intercreditor agreement.
--------------------------------------------------------------------------------
Deerwood MHP I There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
Deerwood MHP II There is $1,601,500 of existing B Note
subject to the terms of an intercreditor
agreement.
--------------------------------------------------------------------------------
EXHIBIT A
Mortgage Loan Schedule
Mortgage
Loan Loan Group
Number Number Property Name Address
----------------------------------------------------------------------------------------------------------------------------------
3 1 Sawgrass Xxxxx(2) 00000 Xxxx Xxxxxxx Xxxxxxxxx
5 1 Independence Mall 0000 Xxxxxxxxxxxx Xxxxxx Xxxxx
12 1 Exchange Building 000 Xxxxxx Xxxxxx
24 2 Forest Rim Apartments 0000 Xxxxxxxxx Xxxxxx Xxxx
36 2 Xxxxxx Legacy(3) 0000 Xxxxxx Xxxxxx Xxx
49 2 Deerwood MHP I(4)(5) 0000 Xxx Xxxxxx
50 2 Deerwood MHP II(4)(5) 0000 Xxx Xxxxxx
76 1 Xxxxxxxxxx Plaza 24011-24031 Xxxxxxxxxx Parkway
90 2 Xxxxxxx Xxxxxxxxx Multifamily Pool Various
90.01 Xxxxxx Place Apartments 000 Xxxxxxxxx Xxxxx
90.02 Boardwalk Apartments 000 00xx Xxxxxx Xxxxxxxxx
90.03 Park Place Apartments 0000 Xxxxxx Xxxxxx Xxxxx
90.04 Xxxxx Xxxxxxxx Apartments 0000-0000 Xxxxxxxx Xxxxxx & 0000-0000 Xxxxx Xxxx
95 2 Yukon Apartments(6) 00000 Xxxxx Xxxxxx
112 2 Capri MHP 00000 Xxxxxx Xxxxxx
146 2 Empire II & Willowbrook Apartments 0000 Xxxxx Xxxxx Xxxxxx & 000 Xxxx 00xx Xxxxxx
150 2 Hidden Acres MHP 0000 Xxxx Xxx Xxxxx Xxxxxx
000 0 Xxxxxxxxx Xxxxxxx MHC 00 Xxxxxxxxx Xxxxxxx
000 0 Xxxx Xxx - Xxxx, XX 0000 Xxxxxx Xxxxxx
162 2 Xxxxx MHC 0000 Xxxxxx Xxxxxx
163 2 Knollwood MHC 000 Xxxxx Xxxxxx XX
Mortgage
Loan Cut-Off Date Monthly P&I Mortgage
Number City State Zip Code County Loan Balance ($) Payments ($) Grace Days Rate (%)
------------------------------------------------------------------------------------------------------------------------------------
3 Xxxxxxx XX 00000 Broward 265,294,118 IO 0 default, 5 late 5.8200%
5 Xxxxxxxxxxxx XX 00000 Xxxxxxx 200,000,000 IO 5.9430%
12 Xxxxxxx XX 00000 King 62,500,000 IO 5.6150%
24 Xxxxxxxx XX 00000 Washington 27,000,000 IO 5.7500%
36 Xxxxxxxxx XX 00000 Xxxx 17,700,000 97,149 5.6800%
49 Xxxxxxx XX 00000 Orange 14,413,500 IO 5.7000%
50 Xxxxxxx XX 00000 Orange 14,413,500 IO 5.7000%
76 Xxxxxxx Xxxxx XX 00000 Orange 9,400,000 IO 6.2200%
90 Various OH Various Various 6,790,636 42,547 6.4000%
90.01 Xxxxxxxx XX 00000 Washington
90.02 Xxxxxx XX 00000 Xxxxx
90.03 Xxxxxx XX 00000 Xxxxx
90.04 Xxxxxx XX 00000 Washington
95 Xxxxxxxxx XX 00000 Los Angeles 6,435,000 40,631 6.4900%
112 Xxxxxxx XX 00000 San Bernardino 4,236,100 IO 6.2300%
146 Bloomington IN 47408 Monroe 2,433,634 13,812 5.9500%
150 Xxxxxxx XX 00000 Maricopa 2,240,000 IO 5.9200%
000 Xxx Xxxxxx XX 00000 Waupaca 1,847,400 11,303 6.1900%
159 Erie PA 16504 Erie 1,670,965 10,080 6.0400%
162 Xxxxxxxxx XX 00000 Xxxx 1,514,000 9,332 6.2600%
000 Xxxxx Xxxx XX 00000 Polk 1,397,900 8,489 6.1200%
Mortgage Original Term Remaining Term
Loan Number to Maturity or to Maturity or Maturity Date Original Amort
Number of Units Unit of Measure ARD (Mos.) ARD (Mos.) or ARD Term (Mos.)
------------------------------------------------------------------------------------------------------------------------------------
3 1,991,491 Sq. Ft. 84 83 07/01/14 IO
5 398,009 Sq. Ft. 120 119 07/10/17 IO
12 308,129 Sq. Ft. 84 81 05/11/14 IO
24 300 Units 60 58 06/11/12 IO
36 237 Units 120 117 05/11/17 420
49 275 Pads 60 58 06/11/12 IO
50 295 Pads 60 58 06/11/12 IO
76 37,615 Sq. Ft. 60 58 06/11/12 IO
90 223 Units 120 118 06/11/17 360
90.01 75 Units
90.02 55 Units
90.03 48 Units
90.04 45 Units
00 00 Xxxxx 000 000 05/11/17 360
112 97 Pads 60 58 06/11/12 IO
146 85 Units 120 118 06/11/17 420
150 101 Pads 60 58 06/11/12 IO
157 102 Pads 120 118 06/11/17 360
159 11,325 Sq. Ft. 120 118 06/11/17 360
162 83 Pads 120 118 06/11/17 360
163 61 Pads 120 118 06/11/17 360
Mortgage Anticipated
Loan Remaining Amort Ground Master Servicing ARD Repayment
Number Term (Mos.) Lease Fee Rate Loan Date Additional Interest Rate
------------------------------------------------------------------------------------------------------------------------------------
3 IO Fee 0.02000% N
5 IO Fee 0.02000% N
12 IO Fee 0.02000% N
24 IO Fee 0.02000% N
36 420 Fee 0.02000% N
49 IO Fee 0.02000% N
50 IO Fee 0.02000% N
76 IO Fee 0.02000% N
90 358 Fee 0.02000% N
90.01 Fee
90.02 Fee
90.03 Fee
90.04 Fee
95 360 Fee 0.02000% N
112 IO Fee 0.02000% N
146 418 Fee 0.06000% N
150 IO Fee 0.02000% N
157 360 Fee 0.02000% N
159 358 Fee 0.02000% Y 6/11/2017 Greater of initial interest rate plus 2.0%
or TCMYI plus 3.28%
162 360 Fee 0.02000% N
163 360 Fee 0.02000% N
Mortgage Cross Collateralized
Loan Loan Environmental and Cross Defaulted Prepayment Early Secured
Number Originator Insurance Loan Flag Provisions Defeasance by LC
---------------------------------------------------------------------------------------------------------------------
3 Nomura N Y N N
5 Nomura N Y N N
12 Nomura N N N N
24 Nomura N N N N
36 Nomura N Y N N
49 Nomura N Deerwood Portfolio Y N N
50 Nomura N Deerwood Portfolio Y N N
76 Nomura N Y N N
90 Nomura N Y N N
90.01 N
90.02 N
90.03 N
90.04 N
95 Nomura N Y N N
112 Nomura N Y N N
146 Nomura N Y N N
150 Nomura N N N N
157 Nomura N Xxxx Xxxx Portfolio N N N
159 Nomura N Y N N
162 Nomura N Xxxx Xxxx Portfolio N N N
163 Nomura N Xxxx Xxxx Portfolio N N N
Mortgage Annual Deposit Initial Deposit
Loan Interest Accrual to Replacement to Capital Initial TI/LC Ongoing TI/LC
Number Method Lockbox Reserves Improvements Reserve Escrow Footnote(1)
-------------------------------------------------------------------------------------------------------------------------------
3 Actual/360 Day 1
5 Actual/360 Day 1
12 Actual/360 Day 1 2,800,000
24 Actual/360 Day 1 64,800 6,250
36 Actual/360 Day 1 47,200
49 Actual/360
50 Actual/360
76 Actual/360 Springing 100,000
90 Actual/360 Day 1 55,752 11,188
90.01
90.02
90.03
90.04
95 Actual/360 Springing 16,588
112 Actual/360
146 Actual/360 14,668
150 Actual/360 60,000
157 Actual/360
159 Actual/360 Day 1 2,265 (1)
162 Actual/360
163 Actual/360
(1) In addition to any escrows funded at loan closing for potential TI/LC
expenses, the related Mortgage Loan requires funds to be escrowed during
some or all of the loan terms for TI/LC expenses, which may be incurred
during the term of the related Mortgage Loans. In certain instances,
escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
(2) One Mortgage Loans (loan number 3) is part of a split loan structure and
the related pari passu companion loan is not included in the Trust Fund
with respect to the Mortgage Loan, unless otherwise specified. With
respect to this Mortgage Loan, unless otherwise specified, the
calculations of LTV Ratios, DSC Ratios and Cut-Off Date Balances per
unit are based on the aggregate indebtedness of or debt service on, as
applicable, the related Mortgage Loan and the related pari passu
companion loan, but not any related future pari passu companion loan.
(3) Commencing on June 11, 2013, annual deposit to replacement reserves is
$47,200.
(4) With respect to the Deerwood MHP I and Deerwood MHP II Loans (loan
numbers 49 and 50), representing 0.8% of the Cut-Off Date Pool Balance
(5.1% of the Cut-Off Date Group 2 Balance), the historical cash flows,
underwritten cash flows and the appraisal values are the weighted
average historical cash flows, underwritten cash flows and appraisal
values of the aggregate loan amount respectively, weighted by the number
of units.
(5) With respect to the Deerwood MHP I and Deerwood MHP II Loans (loan
numbers 49 and 50), representing 0.8% of the Cut-Off Date Pool Balance
(5.1% of the Cut-Off Date Group 2 Balance), the loan to value ratios and
debt service coverage ratios are based on the aggregate loan amount.
(6) Commencing June 11, 2009, annual deposit to replacement reserves is
$16,588.
EXHIBIT B
Free Writing Prospectuses
1. Current Report on Form FWP, filed July 31, 2007, of the Depositor
identified with SEC Accession Number 0000950136-07-005263.
2. Current Report on Form FWP, filed July 31, 2007, of the Depositor
identified with SEC Accession Number 0000950136-07-005250.
3. Current Report on Form FWP, filed August 9, 2007, of the Depositor
identified with SEC Accession Number 0000914121-07-001897.
EXHIBIT C
Sawgrass Xxxxx
Empire II & Willowbrook Apartments.
