EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 1, 2007
(this "Agreement"), is entered into between KeyBank National Association (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc. as master servicer no. 1 (in such capacity, "Master Servicer No.
1" and, also a "Master Servicer"), Xxxxx Fargo Bank, National Association as
master servicer no. 2 ("Master Servicer No. 2" and, also a "Master Servicer"),
CWCapital Asset Management LLC as special servicer (in such capacity, the
"Special Servicer"), LaSalle Bank National Association as trustee (in such
capacity, the "Trustee") and custodian (in such capacity, the "Custodian"), and
Xxxxx Fargo Bank, National Association as certificate administrator (in such
capacity, the "Certificate Administrator"). Capitalized terms used but not
defined herein (including the schedules attached hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of March 1, 2007 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Countrywide Securities Corporation ("Countrywide Securities"), IXIS
Securities North America Inc. ("IXIS Securities"), KeyBanc Capital Markets, a
Division of McDonald Investments Inc. ("McDonald Investments"), Banc of America
Securities LLC ("Banc of America Securities") and Bear, Xxxxxxx & Co. Inc.
("BSCI"; Xxxxxxx Xxxxx, Countrywide Securities, IXIS Securities, McDonald
Investments, Banc of America Securities and BSCI, collectively, in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of March 1, 2007 (the "Certificate Purchase Agreement"),
with Xxxxxxx Xxxxx for itself and as representative of Countrywide Securities
(together in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (such
Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $560,107,033 (the "KeyBank 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 KeyBank
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 of $4,417,019,866 (subject to a
variance of plus or minus 5%). The purchase and sale of the Mortgage Loans shall
take place on March 14, 2007 or such other date as shall be mutually acceptable
to the parties to this Agreement (the "Closing Date"). The consideration (the
"Purchase Consideration") for the Mortgage Loans shall be equal to (i)
101.45656% of the KeyBank Mortgage Loan Balance as of the Cut-off Date, plus
(ii) $1,180,025, which amount represents the amount of interest accrued on the
KeyBank Mortgage Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Pooling and Servicing Agreement, sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement (as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds and all of the Seller's right, title and interest in
and to the Closing Date Deposit. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Custodian (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered will be held
by the Custodian in escrow for the benefit of the Seller at all times prior to
the Closing Date. The Mortgage File with respect to each Mortgage Loan that is a
Trust Mortgage Loan shall contain the following documents:
(i) (A) the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
LaSalle Bank National Association, as trustee for the registered holders
of ML-CFC Commercial Mortgage Trust 2007-5, Commercial Mortgage
Pass-Through Certificates, Series 2007-5, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of LaSalle
Bank National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-5, Commercial Mortgage Pass-Through
Certificates, Series 2007-5 (or, in the case of a Loan Combination, in
favor of LaSalle Bank National Association, as trustee for the registered
holders of ML-CFC Commercial Mortgage Trust 2007-5, Commercial Mortgage
Pass-Through Certificates, Series 2007-5, and in its capacity as lead
lender on behalf of the holder(s) of the related Non-Trust Loan(s)), or in
blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above) in favor of LaSalle Bank National Association, as trustee for
the registered holders of ML-CFC Commercial Mortgage Trust 2007-5,
Commercial Mortgage Pass-Through Certificates, Series 2007-5 (or, in the
case of a Loan Combination, in favor of LaSalle Bank National Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2007-5, Commercial Mortgage Pass-Through Certificates, Series 2007-5, and
in its capacity as lead lender on behalf of the holder(s) of the related
Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of LaSalle Bank National Association, as
trustee for the registered holders of ML-CFC Commercial Mortgage Trust
2007-5, Commercial Mortgage Pass-Through Certificates, Series 2007-5, as
assignee (or, in the case of a Loan Combination, in favor of LaSalle Bank
National Association, as trustee for the registered holders of ML-CFC
Commercial Mortgage Trust 2007-5, Commercial Mortgage Pass-Through
Certificates, Series 2007-5, and in its capacity as lead lender on behalf
of the holder(s) of the related Non-Trust Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) an original or a copy of any intercreditor agreement relating to
permitted debt of the Mortgagor and any intercreditor agreement relating
to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit (which letter of credit
shall not be delivered in original from to the Trustee, but rather to the
applicable Master Servicer), in each case relating to the subject Mortgage
Loan;
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan Combination, an
original or a copy of the related Loan Combination Intercreditor
Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Custodian) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee that is referred to in clause (viii) of the definition of
"Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Custodian following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Custodian following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and
Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Custodian in connection with any such recording, filing or delivery
performed by the Custodian at the Seller's request and the fees of the
Recording/Filing Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the applicable Master Servicer (or, at the direction of such Master Servicer, to
the appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due diligence analyses, credit committee briefs or
memoranda or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Custodian, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Custodian or any
other person because the delivery of the mortgage loan checklist is being
provided to the Custodian solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
applicable Master Servicer, the initial data (as of the Cut-off Date or the most
recent earlier date for which such data is available) contemplated by the CMSA
Loan Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and the Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's articles of association or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for the Seller to perform its
duties and obligations under this Agreement, or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party or
by which the Seller is bound, which default might have consequences that
would, in the Seller's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Seller or its properties or materially and adversely affect its
performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution of this Agreement or the performance
by the Seller of its obligations under this Agreement (except to the
extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Seller, threatened against the Seller in any
court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) The Prospectus Supplement contains all the information that is
required to be provided in respect of the Seller (that arise from its role
as "sponsor" (within the meaning of Regulation AB)), the Mortgage Loans,
the related Mortgagors and the related Mortgaged Properties pursuant to
Regulation AB.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the applicable Master
Servicer for deposit into its Collection Account any Substitution Shortfall
Amount in connection therewith; provided, however, that, unless the Document
Defect or Breach would cause the Mortgage Loan not to be a Qualified Mortgage,
if such Document Defect or Breach is capable of being cured but not within such
90-day period and the Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, the Seller
shall have an additional 90 days to complete such cure (or, failing such cure,
to repurchase or substitute the related Mortgage Loan (which, for purposes of
such repurchase or substitution, shall include an REO Loan)); and provided,
further, that with respect to such additional 90-day period, the Seller shall
have delivered an officer's certificate to the Certificate Administrator setting
forth the reason(s) such Document Defect or Breach is not capable of being cured
within the initial 90-day period and what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that no Document Defect (other than with respect
to the Specially Designated Mortgage Loan Documents) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans, determined at the time of repurchase or
substitution, based upon an appraisal obtained by the Special Servicer at the
expense of the Seller shall not be greater than the weighted average
loan-to-value ratio for all such Crossed Loans, including the affected Crossed
Loan determined at the time of repurchase or substitution, based upon an
appraisal obtained by the Special Servicer at the expense of the Seller;
provided, that if such debt service coverage and loan-to-value criteria are
satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Certificate
Administrator, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release would not cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions and (ii) the consent of the Controlling Class Representative
(if one is then acting), which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Document Defect or
Breach exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of a Crossed Loan being repurchased shall be
prepared at the expense of the Seller and, where required, with the consent of
the related Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach known to the Seller, the Seller shall
provide, once every ninety days, the officer's certificate to the Certificate
Administrator described above as to the reason(s) such Document Defect or Breach
remains uncured and as to the actions being taken to pursue cure; provided,
however, that, without limiting the effect of the foregoing provisions of this
Section 3(c), if such Document Defect or Breach shall materially and adversely
affect the value of such Mortgage Loan or the interests of the holders of the
Certificates therein (subject to the second and third provisos in the sole
sentence of the preceding paragraph), the Seller shall in all cases on or prior
to the second anniversary of the Closing Date either cause such Document Defect
or Breach to be cured or repurchase or substitute for the affected Mortgage
Loan. The delivery of a commitment to issue a policy of lender's title insurance
as described in representation 8 set forth on Schedule I hereto in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect or Breach with respect to any Mortgage File if such
actual policy of insurance is delivered to the Custodian on its behalf not later
than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Certificate Administrator an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Custodian or the Trust Fund in connection with
such release, (ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set forth in the Mortgage Loan documents and the Seller
provides an opinion of counsel to the effect that such release would not cause
either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any fees or expenses
that are the subject of a cure by the Seller are subsequently obtained from the
related Mortgagor, the cure payment made by the Seller shall be returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the Seller,
acting in its sole discretion, may effect a repurchase or substitution (in
accordance with the provisions of this Section 3(c) setting forth the manner in
which a Mortgage Loan may be repurchased or substituted) of a Mortgage Loan, as
to which representation 30 set forth on Schedule I has been breached, in lieu of
paying the costs and expenses that were the subject of the breach of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the applicable Master Servicer's
Collection Account, and, if applicable, the delivery of the Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Custodian and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf the
Certificate Administrator may act) on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this Agreement
will not (A) violate the Purchaser's articles of incorporation or bylaws, (B)
violate any law or regulation or any administrative decree or order to which it
is subject if compliance therewith is necessary (1) ensure the enforceability of
this Agreement or (2) for the Purchaser to perform its duties and obligations
under this Agreement or (C) constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to which the
Purchaser is a party or by which the Purchaser is bound, which default might
have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP on the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian
and the applicable Master Servicer, respectively, all documents represented to
have been or required to be delivered to the Custodian and the applicable Master
Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of
Ernst & Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus (as defined in Section 6(d) of this Agreement) and Prospectus
Supplement (as defined in Section 6(d) of this Agreement), respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of March 1, 2007,
among the Seller, Countrywide Commercial Real Estate Finance, Inc., Xxxxxxx
Xxxxx Mortgage Lending, Inc., IXIS Real Estate Capital Inc., Xxxxx Fargo Bank,
National Association, the Purchaser, the Underwriters and the Initial
Purchasers. Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the agreement(s) pursuant to which the servicing rights with
respect to the Mortgage Loans are being sold to the applicable Master Servicer
(such agreement(s), individually and/or collectively, the "Servicing Rights
Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Free Writing Prospectus and nothing has come to his/her attention
that would lead him/her to believe that the Specified Portions of the Free
Writing Prospectus, as of the Time of Sale or as of the Closing Date, included
or include any untrue statement of a material fact relating to the Mortgage
Loans or omitted or omit to state therein a material fact necessary in order to
make the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his/her attention that would lead him/her to
believe that the Specified Portions of the Prospectus Supplement, as of the date
of the Prospectus Supplement or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omit to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that would lead him/her to
believe that the Specified Portions of the Memorandum, as of the date thereof or
as of the Closing Date, included or include any untrue statement of a material
fact relating to the Mortgage Loans or omitted or omit to state therein a
material fact necessary in order to make the statements therein related to the
Mortgage Loans, in the light of the circumstances under which they were made,
not misleading.
(e) The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage
Loans" (insofar as the information contained in Annex A-1 relates to the
Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Free Writing
Prospectus, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex A-3 to the Free Writing
Prospectus, entitled "Resurgens Plaza Trust Mortgage Loan Amortization
Schedule", Annex B to the Free Writing Prospectus entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Free Writing Prospectus, entitled "Description of the
Ten Largest Mortgage Loans or Groups of Cross-Collateralized Mortgage Loans"
(insofar as the information contained in Annex C relates to the Mortgage Loans
sold by the Seller hereunder), the CD-ROM which accompanies the Free Writing
Prospectus (insofar as such CD-ROM is consistent with Annex X-0, Xxxxx X-0
and/or Annex B), and the following sections of the Free Writing Prospectus (only
to the extent that any such information relates to the Seller or the Mortgage
Loans sold by the Seller hereunder and exclusive of any statements in such
sections that purport to describe the servicing and administration provisions of
the Pooling and Servicing Agreement and exclusive of aggregated numerical
information that includes the Other Mortgage Loans): "Summary of Free Writing
Prospectus--Relevant Parties--Sponsors/Mortgage Loan Sellers", "Summary of Free
Writing Prospectus--The Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related to the Mortgage Loans", "Description of the Mortgage
Pool" and "Transaction Participants--The Sponsors and Mortgage Loan Sellers".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-3 to the Prospectus Supplement, entitled "Resurgens
Plaza Trust Mortgage Loan Amortization Schedule", Annex B to the Prospectus
Supplement entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Prospectus Supplement, entitled
"Description of the Ten Largest Mortgage Loans or Groups of Cross-Collateralized
Mortgage Loans" (insofar as the information contained in Annex C relates to the
Mortgage Loans sold by the Seller hereunder), the CD-ROM which accompanies the
Prospectus Supplement (insofar as such CD-ROM is consistent with Annex X-0,
Xxxxx X-0 and/or Annex B), and the following sections of the Prospectus
Supplement (only to the extent that any such information relates to the Seller
or the Mortgage Loans sold by the Seller hereunder and exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan
Sellers", "Summary of Prospectus Supplement--The Mortgage Loans and the
Mortgaged Real Properties", "Risk Factors--Risks Related to the Mortgage Loans",
"Description of the Mortgage Pool", "Transaction Participants--The Sponsors" and
"Transaction Participants--The Sponsors and Mortgage Loan Sellers".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated
February 20, 2007, and relating to the Publicly-Offered Certificates (the first
two (2) pages of which are attached hereto as Schedule III), as supplemented and
amended by that certain free writing prospectus (the first two (2) pages of
which are attached hereto as Schedule IV) distributed to potential investors in
the Publicly-Offered Certificates on February 26, 2007;
"Memorandum" means the confidential Private Placement Memorandum
dated March 1, 2007, and relating to the Private Certificates;
"Prospectus" means the prospectus dated March 1, 2007.
"Prospectus Supplement" means the prospectus supplement dated March
1, 2007, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means March 1, 2007, at 12:15 p.m.
(f) Each of: (i) the resolutions of the Seller's board of directors
or a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the articles of association and bylaws of
the Seller, and (iii) a certificate of corporate existence of the Seller issued
by the Office of the Comptroller of the Currency not earlier than thirty (30)
days prior to the Closing Date;
(g) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Certificate Administrator, the
Custodian, the Underwriters, the Initial Purchasers and each of the Rating
Agencies, together with such other written opinions, including as to insolvency
matters, as may be required by the Rating Agencies; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the applicable Master Servicer's Collection
Account, the Distribution Account or, if established, the REO Account whether in
the form of cash, instruments, securities or other property; (iii) the
assignment to the Trustee of the interest of the Purchaser as contemplated by
Section 1 of this Agreement shall be deemed to be an assignment of any security
interest created hereunder; (iv) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes, and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be possession by the secured party
for purposes of perfecting the security interest pursuant to Section 9-313 of
the UCC of the applicable jurisdiction; and (v) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement. The Seller does hereby
consent to the filing by the Purchaser of financing statements relating to the
transactions contemplated hereby without the signature of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser any disclosure information relating to
any event, specifically relating to the Seller, reasonably determined in good
faith by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form
10-K by the Trust Fund (in formatting reasonably appropriate for inclusion in
such form) insofar as such disclosure is required under Item 1117 or 1119 of
Regulation AB or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts
to deliver proposed disclosure language relating to any event, specifically
relating to the Seller (in its role as Sponsor), described under Item 1117 or
1119 of Regulation AB or Item 1.03 to Form 8-K to the Purchaser as soon as
reasonably practicable after the Seller becomes aware of such event and in no
event more than two business days following the occurrence of such event if such
event is reportable under Item 1.03 to Form 8-K. The obligation of the Seller to
provide the above referenced disclosure materials in any fiscal year of the
Trust will terminate upon the Certificate Administrator's filing of a Form 15
with respect to the Trust as to that fiscal year in accordance with Section 8.16
of the Pooling and Servicing Agreement or the reporting requirements with
respect to the Trust under the Securities Exchange Act of 1934, as amended (the
"1934 Act") have otherwise automatically suspended. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
9 will be used in the preparation of reports on Form 8-K, Form 10-D or Form 10-K
with respect to the Trust as required under the 1934 Act and any applicable
rules promulgated thereunder and as required under Regulation AB.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
either by certified mail (return receipt requested) or by courier service (proof
of delivery requested) and also by facsimile transmission to the intended
recipient at the "Address for Notices" specified for such party on Exhibit A
hereto, or as to either party, at such other address as shall be designated by
such party in a notice hereunder to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when received (in the case of a notice sent by mail or courier
service) or transmitted (in the case of a faxed notice), in each case given or
addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
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
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President, Chief
Officer in Charge of Commercial
Mortgage Securitization
EXHIBIT A
Seller:
------
Address for Notices:
KeyBank National Association
c/o KeyBank Real Estate Capital
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.:(000) 000-0000
Xxxxxxxxxx Xxxxxxx Xxxxxxxx Suelthaus PC
000 Xxxx 00xx Xx., Xxxxx 00000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.:(000) 000-0000
Purchaser:
---------
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
Facsimile No.: (000) 000-0000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
Telecopier No.: (000) 000-0000
SCHEDULE I
Mortgage Loan Representations and Warranties
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to the Purchaser
or its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is, or shall be as of the Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal and/or interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in March 2007, without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent since the date of
origination of any Mortgage Loan, without giving effect to any applicable grace
period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing interest or penalties; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy, a "marked-up"
commitment binding upon the title insurer or escrow instructions binding on the
title insurer and irrevocably obligating the title insurer to issue such title
insurance policy); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy, a "marked-up" commitment binding upon the title insurer
or escrow instructions binding on the title insurer and irrevocably obligating
the title insurer to issue such title insurance policy); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Crossed Group; (g) if the related Mortgaged Property consists of one or
more units in a condominium, the related condominium declaration; and (h) the
rights of the holder of any Non-Trust Loan that is part of a related Loan
Combination to which any such Mortgage Loan belongs. The Permitted Encumbrances
do not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any related Non-Trust Loan that is part of a related Loan Combination to
which any such Mortgage Loan belongs, and except that a license may have been
granted to the related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases, including, without
limitation, the right to operate the related leased property so long as no event
of default has occurred under such Mortgage Loan; and each assignor thereunder
has the full right to assign the same. The related assignment of any Assignment
of Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid, binding and, subject to the limitations
and exceptions set forth in representation 13 below, enforceable assignment of
such Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession of the related Mortgaged Property to collect
the rents or provides for rents to be paid directly to the related mortgagee, if
there is an event of default beyond applicable notice and grace periods. Except
for the holder of the related Non-Trust Loan with respect to any Mortgage Loan
that is part of a Loan Combination, no person other than the related Mortgagor
owns any interest in any payments due under the related leases on which the
Mortgagor is the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any manner, (b) neither the
related Mortgaged Property nor any material portion thereof has been released
from the lien of such Mortgage and (c) the related Mortgagor has not been
released from its obligations under such Mortgage, in whole or in material part.
With respect to each Mortgage Loan, since the later of (a) February 20, 2007 and
(b) the closing date of such Mortgage Loan, the Seller has not executed any
written instrument that (i) impaired, satisfied, canceled, subordinated or
rescinded such Mortgage Loan, (ii) waived, modified or altered any material term
of such Mortgage Loan, (iii) released the Mortgaged Property or any material
portion thereof from the lien of the related Mortgage, or (iv) released the
related Mortgagor from its obligations under such Mortgage Loan in whole or
material part. For avoidance of doubt, the preceding sentence does not relate to
any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge based upon surveys and/or the title
insurance policy referred to in representation 8 below, as of the date hereof,
(a) none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy, a "marked up" commitment binding on the
title insurer or escrow instructions binding on the title insurer irrevocably
obligating the title insurer to issue such title insurance policy) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances, except that in
the case of a Mortgage Loan as to which the related Mortgaged Property is made
up of more than one parcel of property, each of which is secured by a separate
Mortgage, such Mortgage (and therefore the related Title Policy) may be in an
amount less than the original principal amount of the Mortgage Loan, but is not
less than the allocated amount of subject parcel constituting a portion of the
related Mortgaged Property. Such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole insured without the consent of or notice to the insurer. Such Title Policy
contains no material exclusion for whether, or it affirmatively insures (unless
the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
(pending the satisfaction of certain conditions relating to leasing, repair or
other matters with respect to the related Mortgaged Property) documented as part
of the Mortgage Loan documents and the rights to which are transferred to the
Trustee) and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as applicable for the jurisdiction where the related
Mortgaged Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are or will become payable to such trustee by the Seller,
the Purchaser or any transferee thereof except in connection with a trustee's
sale after default by the related Mortgagor or in connection with any full or
partial release of the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a deductible or the
deductible amount is held in escrow and all premiums have been paid in full.
Each Mortgagor represents and warrants in the related Mortgage Loan documents
that except as set forth in certain environmental reports and to its knowledge
it has not used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials. The related Mortgagor (or affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
out-of-pocket expenses and claims of any kind whatsoever (including attorneys'
fees and costs) paid, incurred or suffered by or asserted against, any such
party resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or one form of
action law or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent transfer and
conveyance or other similar laws affecting the enforcement of creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) public
policy considerations underlying applicable securities laws, to the extent that
such public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable securities
laws, and except that certain provisions in such loan documents may be further
limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of: (1) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement basis, (2) the outstanding principal balance of such
Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable federal flood insurance program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Material Leasehold Estate. If any Mortgage Loan is secured by
the interest of a Mortgagor as a lessee under a ground lease of all or a
material portion of a Mortgaged Property (together with any and all written
amendments and modifications thereof and any and all estoppels from or other
agreements with the ground lessor, a "Ground Lease"), but not by the related fee
interest in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
promptly and duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File; and if required
by such Ground Lease, the lessor thereunder has received notice of the
lien of the related Mortgage in accordance with the provisions of such
Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee under such Mortgage Loan;
and such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term, which together with
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage
or related Mortgage Loan documents, taken together, any related casualty
insurance proceeds (other than de minimis amounts for minor casualties)
with respect to the leasehold interest will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property
is located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than (a) amounts paid by the tenant as specifically provided under a
related lease or by the property manager or (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses incurred in
connection with the origination and funding of the Mortgage Loan), for the
payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) subject to
available funds, a portion of the cash flow generated by such Mortgaged Property
will be applied each month to pay down the principal balance thereof in addition
to the principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. Except with respect to another Mortgage
Loan (which will also be an asset of the Trust Fund) cross-collateralized with a
Mortgage Loan, none of the Mortgage Loans permits the related Mortgaged Property
to be encumbered by any other mortgage lien junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. To the Seller's knowledge, except as indicated in the
preceding sentence and except for cases involving other Mortgage Loans, none of
the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. The related Mortgage Loan documents require the Mortgagor under each
Mortgage Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including any applicable Rating Agency fees, or would
permit the related mortgagee to withhold such consent if such costs and expenses
are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Other than any default interest or late charges,
each Mortgage Loan (other than ARD Loans after their respective Anticipated
Repayment Dates) complied with, or was exempt from, all applicable usury laws in
effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date
of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchise
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate, late charge or prepayment premium.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, after due
inquiry consistent with the inquiry a reasonably prudent commercial mortgage
lender would conduct under similar circumstances, there exists no material
default, breach, violation or event of acceleration under the Mortgage Note or
Mortgage for any Mortgage Loan (other than payments due but not yet 30 days or
more delinquent); provided, however, that this representation and warranty does
not cover any default, breach, violation or event of acceleration that pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with
a Cut-off Date Balance of $5,000,000 or more was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that during the term of the
Mortgage Loan it may only own and operate one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents generally further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan (which term
includes any Mortgage Loan that is part of a Loan Combination, but does not
include any related Non-Trust Loan) and not a participation interest in a
mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing of a UCC
financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan provides
for interest only payments prior to its Stated Maturity Date or, in the case of
an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan begins
to amortize prior to its Stated Maturity Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor or an entity controlled by a principal of such Mortgagor, for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation awards. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than fifteen (15) days from the applicable Due Date
or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
Annex A (to Schedule I)
Exceptions to the Representations and Warranties
[Attached]
ML-CFC 2007-5
KEYBANK
EXCEPTIONS TO MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
Representation 2/Ownership of Mortgage Loans:
A third party is entitled to a correspondent fee with respect to each of
the following Mortgage Loans:
Loan No. 10032961/Coca Cola Distribution Center
Loan No. 10031759/Ashley Furniture Home Store
Loan Xx. 00000000/Xxxx Xxxxx Xxxxx Xxxxxxxx 0X
Xxxx No. 10032816/Xxxxxxxx Plaza
Loan No. 10031404/The Marketplace at Hanford Shopping Center
Loan No. 10028976/Slippery Rock Portfolio
Loan No. 10032436/Vista Plaza
Loan No. 10032437/The Shoppes at Deerfoot
Representation 6/Mortgage Status; Waivers and Modifications:
With respect to Loan Nos. 10032076/FedEx Kinko's and 10032078/Xxxxxx &
Xxxxx, modification agreements have been executed to document Seller's agreement
at the time of the closing of such Mortgage Loans to waive the requirement for
insurance coverage for acts of terrorism.
Representation 7/Condition of Property; Condemnation:
With respect to Loan Xx. 00000000/Xxxx Xxxx Xxxxxxxx Xxxxxx, a
condemnation proceeding is pending with respect to a proposed road widening. The
unimproved portion of the Mortgaged Property to be taken pursuant to such
condemnation proceeding has been identified and was not included in the
underwriting of the Mortgage Loan. A partial release provision was included in
the related Mortgage regarding such portion of the Mortgaged Property.
Representation 8/Title Insurance:
With respect to Loan Nos. 10030722/Detroit Riverview Medical Complex and
10030839/St. Luke's Cornwall Medical Complex, each related Mortgage Loan is the
first priority "A Loan" of an A/B structured loan transaction. The corresponding
subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. Each Mortgage and title insurance policy are each in the amount of
the sum of the principal balances of the respective Mortgage Loan and the
corresponding subordinate "B Loan".
Representation 10/Mortgage Provisions:
With respect to Loan No. 10031404/The Marketplace at Hanford Shopping
Center, terrorism coverage is not required if the cost is commercially
unreasonable.
With respect to Loan Nos. 10032340/Xxxxxxx Plaza I and 10033423/Great
Xxxxx Marketplace, terrorism coverage is not required to the extent the premium
for such coverage exceeds $50,000 annually.
With respect to Loan No. 10032816/Xxxxxxxx Plaza, terrorism coverage is
not required if it becomes unavailable or the cost becomes commercially
unreasonable.
With respect to Loan Xx. 00000000/Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx,
terrorism coverage is not required with respect to the portion of the Mortgaged
Property leased to tenant Home Depot unless the related Mortgagor is carrying
all insurance for such portion of the Mortgaged Property.
With respect to Loan Nos. 10032076/FedEx Kinko's and 10032078/Xxxxxx &
Noble, the requirement for insurance coverage for acts of terrorism was waived.
With respect to Loan Nos 100307221/Detroit Riverview Medical Complex and
10030829/St. Luke's Cornwall Medical Center, terrorism coverage is not required
if the premium cost exceeds the combined premium costs of the property insurance
and business interruption insurance as of the date of the procurement or renewal
of the terrorism coverage.
Representation 12/Environmental Condition:
The following Mortgaged Properties have Environmental Reports older than
12 months: South Rock Apartments (10028976); Xxxxxxxxx Apartments (10028976);
Raymour & Xxxxxxxx (10028976).
Representation 14/Insurance:
With respect to Loan No. 10032076/FedEx Kinko's, the business interruption
coverage provides 6 rather than 12 months coverage.
With respect to Loan No. 10032078/Xxxxxx & Xxxxx, no business interruption
coverage was obtained.
With respect to Loan No. 10032831/Panera Bread, provided the related
guarantor maintains a net worth of not less than $15,000,000 and liquidity of
not less than $1,000,000, the requirements that Seller be named as a mortgagee
on the insurance policies and that Seller be entitled to notice of cancellation
were waived.
With respect to Loan No. 10030892/Shoppes of Blue Lake, the related
Mortgage Loan documents require the maintenance of hazard insurance, but no
other types of insurance are specifically required.
With respect to Loan No. 10032961/Coca-Cola Distribution Center, the sole
tenant self-insures the Mortgaged Property and (i) no business interruption/rent
loss insurance coverage was obtained, and (ii) there is no policy insuring
against property damage resulting from acts of terrorism.
The insurance policies for the following Mortgage Loans have exclusions
for acts of terrorism:
Loan No. 10030892/Shoppes of Blue Lake;
Loan No. 10032078/Xxxxxx & Noble;
Loan No. 10032831/Panera Bread; and
Loan No. 10032943/Highland Plaza (with respect to the portion of the
related Mortgaged Property leased to Home Depot).
Representation 18/Material Leasehold Estate:
With respect to Loan No. 10032078/Xxxxxx & Xxxxx, the related Ground Lease
requires the lessor to give notice of default to Mortgagee, but does not
expressly provide that no notice of termination is effective against Mortgagee
if such notice is not given to Mortgagee. Also with respect to Loan No.
10032078/Xxxxxx & Noble, lessor's consent is required for an assignment
following foreclosure, but not a sublease.
With respect to Loan Nos. 10030722/Detroit Riverview Medical Complex and
10030891/St. Luke's Cornwall Medical Complex, each of the related Ground Leases
provides that the Mortgagor's interest in such Ground Lease is assignable
without lessor's consent upon foreclosure, but lessor's consent, which will not
unreasonably be withheld or delayed, is required for further assignments
following foreclosure.
The following exceptions apply with respect to Loan Xx. 00000000/Xxxxxxxxx
Xxxxx:
(a) The lender, its nominee or successors and assigns are permitted
to take the Ground Lease by assignment in connection with a foreclosure,
but in order to assign the Ground Lease after foreclosure, the lessor's
consent will have to be obtained, but such consent is not to be
unreasonably withheld.
(b) The Ground Lease does not expressly provide any notice of
termination will not be effective against the Mortgagee unless a copy has
been delivered; however, the lessor has agreed that it will not terminate
the Ground Lease (unless the Mortgagee's cure period has expired) without
Mortgagee's prior written consent, which is not to be unreasonable
withheld.
(c) The Ground Lease does not expressly provide any amendment
modification, termination without the consent of mortgagee will not be
binding on the mortgagee; however Mortgagee must receive notice and is
obligated to not unreasonably withhold its consent to any modification or
amendment of the Ground Lease.
Representation 23/Other Mortgage Liens:
With respect to Loan Nos. 10030722/Detroit Riverview Medical Complex and
10030839/St. Luke's Cornwall Medical Complex, each related Mortgage Loan is the
first priority "A Loan" of an A/B structured loan transaction. The corresponding
subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. Each related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
Representation 27/Cross-Collateralization:
With respect to Loan Nos. 10030722/Detroit Riverview Medical Complex and
10030839/St. Luke's Cornwall Medical Complex, each related Mortgage Loan is the
first priority "A Loan" of an A/B structured loan transaction. The corresponding
subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. Each related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
Representation 29/Defeasance:
With respect to Loan Nos. 10032436/Vista Plaza and 10032437/The Shoppes at
Deerfoot, the Defeasance Collateral may be direct, non-callable and
non-redeemable securities evidencing an obligation to pay principal and interest
in a full and timely manner that are direct obligations of the United States of
America for the payment of which its full faith and credit is pledged, or
similar REMIC eligible collateral acceptable to lender and the rating agencies,
which obligations or collateral must, in any event, be in compliance with
Treasury Reg. Section 1.860G-2(a)(8).
With respect to Loan No. 10032921/Resurgens Plaza, included within
Defeasance Collateral is the right to use quasi governmental securities (in
additional to "governmental securities"), rated AAA by the Rating Agencies,
provided that such quasi governmental securities are acceptable to the Rating
Agencies.
Representation 31/Fixed Rate Loans:
With respect to Loan No. 10032921/Resurgens Plaza, the interest
rate is fixed, but the initial rate bumps up in 2010 and again in 2013.
Representation 33/No Material Default:
After the closing of Loan No. 10033044/Dupont Station Shopping Center,
Seller became aware that the related Mortgagor held title to certain additional
real property in violation of the related Mortgage Loan documents. Such real
property has since been conveyed by the Mortgagor to another entity and as such,
to the Seller's knowledge no material default, breach, violation or event of
acceleration currently exists with respect to such Mortgage Loan.
Representation 34/Due-on-Sale:
Loan No. 10031962/Wellington Medical Arts Pavilion III permits the
transfer of the Mortgaged Property, or the transfer of equity interests in the
related Mortgagor, to a newly formed special purpose entity owned by specified
parties.
Loan Xx. 00000000/000 Xxxx Xxx Xxxxxx, is a residential co-op loan which
permits tenant shareholders to transfer their stock in the related Mortgagor
together with their interests in proprietary leases.
With respect to Loan No. 10032818/Alutiiq Center, the controlling equity
interest holder of the Mortgagor, Afognak Native Corporation ("ANC") is a
corporation that qualifies as a "Village Corporation" under 43 U.S.C. ss. 1601
et seq. (also known as the "Alaska Native Claims Settlement Act"). So long as
ANC continues to qualify as a Village Corporation, transfers of ANC's stock may
occur to the extent permitted by 43 U.S.C.A. ss. 1606(h) without limitation as
to the percentage of such shares that may be so transferred. Additionally, ANC
may transfer all of its membership interests in the Mortgagor to a "settlement
trust" within the meaning of the Alaska Native Claims Settlement Act provided
certain conditions are satisfied, including the condition that the parties
owning the common stock of ANC shall be identical to the parties owning all of
the legal or beneficial interests of such settlement trust.
Representation 35/Single Purpose Entity:
With respect to Loan Xx. 00000000/Xxxxxxxxxx Xxxxxxx Xxxx Xxxxxxxx XXX and
Loan No. 10030892/Shoppes of Blue Lake, the organizational documents of the
related Mortgagor do not require it to be a Single Purpose Entity.
With respect to Loan No. 10032818/Alutiiq Center, the related Mortgagor
was required to be a Single Purpose Entity but was permitted to maintain $40,000
of indebtedness relating to certain equipment financing.
With respect to Loan Xx. 00000000/Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx, the
related Mortgagor was required to be a Single Purpose Entity, but subsequent to
the origination of such Mortgage Loan, Seller became aware that the related
Mortgagor held title to certain additional real property in violation of the
Mortgage Loan Documents. Such real property has since been conveyed by the
Mortgagor to another entity.
Representation 38/ARD Loans:
Loan No. 10032943/Highland Plaza, is an ARD Loan with an initial period of
interest only payments before commencement of scheduled monthly payments of
principal and interest.
Loan No. 10032961/Coca Cola Distribution Center is an ARD Loan with
interest only payments until the Anticipated Repayment Date when monthly
payments of principal and interest commence if the Mortgage Loan is not paid in
full.
Representation 42/Servicing Rights:
A third party is entitled to a correspondent fee with respect to each of
the following Mortgage Loans:
Loan No. 10032961/Coca Cola Distribution Center
Loan No. 10031759/Ashley Furniture Home Store
Loan Xx. 00000000/Xxxx Xxxxx Xxxxx Xxxxxxxx 0X
Xxxx No. 10032816/Xxxxxxxx Plaza
Loan No. 10031404/The Marketplace at Hanford Shopping Center
Loan No. 10028976/Slippery Rock Portfolio
Loan No. 10032436/Vista Plaza
Loan No. 10032437/The Shoppes at Deerfoot
Representation 43/Recourse:
Loan No. 10032961/Coca-Cola Distribution Center does not include a
non-recourse carveout for waste.
With respect to Loan No. 10032921/Resurgens Plaza, there is no
non-recourse carveout expressly for a misappropriation of any tenant security
deposits.
Representation 45/Fee Simple Interest:
With respect to Loan Xx. 00000000/Xxxxxxxxx Xxxxx, xxx Xxxxxxxx
Property consists of a leasehold interest and a fee interest in the air
rights above the leasehold interest.
Representation 47/Operating Statements:
With respect to Loan Nos. 10032825/CVS - Xxxxxxx, 00000000/Regions Bank,
00000000/Panera Bread, and 10032816/Xxxxxxxx Plaza, operating statements and
rent rolls are required semi-annually rather than quarterly.
With respect to Loan Xx. 00000000/000 Xxxx Xxx Xxxxxx, rent rolls and
operating statements are required annually rather than quarterly.
With respect to Loan Nos. 10032436/Vista Plaza and 10032437/The Shoppes at
Deerfoot, an annual balance sheet of the related Mortgagor is required rather
than an annual financial statement.
With respect to Loan Nos. 10030892/Shoppes of Blue Lake, rent rolls are
required to be delivered annually rather than quarterly.
With respect to Loan No. 00000000/TCF Bank Headquarters: (i) the
requirement for quarterly operating statements and rent rolls is suspended so
long as the sole tenant of the related Mortgaged Property continues to be the
sole tenant under its lease and no event of default exists under such lease; and
(ii) an annual certified letter regarding the minimum liquidity and net worth of
the Mortgagor is required rather than an annual financial statement, but such
requirement for an annual certified letter is suspended so long as the sole
tenant of the related Mortgaged Property continues to be the sole tenant under
its lease and no event of default exists under such lease.
With respect to Loan No. 10032921/Resurgens Plaza, there is no specific
requirement for the delivery of rent rolls, although they are required to
deliver other information necessary and sufficient to fairly represent the
financial position and results of operation of the Property.
Annex B (to Schedule I)
Mortgaged Properties as to Which the Only Environmental Investigations
Conducted in Connection with the Origination of the Related Mortgage Loan
Were With Respect to Asbestos-Containing Materials and Lead-Based Paint.
(Representation 12)
None.
Annex C (to Schedule I)
Mortgage Loans Covered By Secured Creditor
Environmental Insurance Policies
(Representations 12 and 49)
None
Annex D (to Schedule I)
Ground Leases Not Covered by Representation 18
(Representation 45)
None.
SCHEDULE II
Mortgage Loan Schedule
ML-CFC 2007-5: Mortgage Loan Schedule - KEY
Property
Loan # Property Name Originator Type Street Address
------ ------------------------------------------ ---------- ------------ -----------------------------------------
5 Resurgens Plaza Key Office 000 Xxxx Xxxxx Xxxxx Xxxx
7 Camp Hill Shopping Center Key Retail 00 Xxxxx 00xx Xxxxxx
24 Quintiles Transnational Building Key Office 0000 Xxxx 000xx Xxxxxx
26 Highland Plaza Key Retail 0000 Xxxxxx Xxxxx Xxxx
27 Raymour & Xxxxxxxx Key Industrial 7230, 7238 & 0000 Xxxxxx Xxxx
46 Pahrump Valley Junction Key Retail 000-000 Xxxxx Xxxxxx Xxxxxxx 160
60 Shoppes of Blue Lake Key Retail 0000-0000 Xxxxxx Xxxx
61 Greenfield Gateway Key Retail 1728 and 0000 Xxxxx Xxxxxxxxxx Xxxx
71 Alutiiq Center Key Office 0000 Xxxxxx Xxxxxxxxx
73 Gladstone Portfolio Key Office Various
73.01 Tuscany Center One Key Office 0000 Xxxx Xxxxxxx 000
73.02 Nationwide Insurance Xxxxxxxx Xxx Xxxxxx 0000 Xxxxxxxxxxx Xxxxxxxx
73.03 San Jacinto Surgery Center Key Office 0000 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxx Xxxxx Xxxxxxxxxx Xxx Multifamily 00000 Xxxxxx Xxxxx Xxxxx
83 Dupont Station Shopping Center Key Retail 0000-0000 Xxxxxxxxxx Xxxxx
86 Slippery Rock Portfolio Key Multifamily Various
86.01 South Rock Apartments Key Multifamily 000 Xxxxxxx Xxxx
86.02 Xxxxxxxxxx Apartments Key Multifamily 000 Xxxxx Xxxx Xxxxxx
93 Detroit Riverview Medical Complex Key Office 0000 Xxxx Xxxxxxxxx Xxxxxx
94 GreatWoods Marketplace Key Retail 000 -000 Xxxxxxxxx Avenue, Route 140
98 The Medical Pavilion at St. John's Key Office 0000 Xxxxx Xxxx Xxxxxx
101 St. Luke's Cornwall Medical Complex Key Office 00 Xxxxxx Xxxxxx
102 Metrowest Shoppes Key Retail 0000 Xxxxx Xxxxxxx Xxxx
103 Xxxxxxx Plaza I Key Retail 0000 Xxxxxxx Xxxxx Xxxxx Xxxx
105 Gateway East and West Key Office 6188 & 0000 Xxxx Xxxx Xxxx
106 TCF Bank Headquarters Key Office 00000 Xxxxxxx Xxxxxxx
114 Village Faire Shoppes Key Retail 0000-0000 Xxxxx Xxxxx Xxxxxxx
127 The Shoppes at Deerfoot Key Retail 0000-0000 X.X. Xxxxxxx 11/Gadsden Highway
130 Wellington Medical Arts Pavilion III Key Office 0000 Xxxxx Xxxx 0
000 Xxxxxxx Technology Center Key Office 46531 - 00000 Xxxxxxx Xxxxxxxxx
164 Coca-Cola Distribution Center Key Industrial 0000 00xx Xxxxxx
182 Elk Grove Self Storage Key Self Storage 0000 Xxxx Xxxxxxxx Xxxxxxxxx
186 Ashley Furniture Home Store Key Retail 1150 Xxxxx Mall Boulevard
Xxxxxxx Portfolio Key Retail Various
190 Xxxxxx & Xxxxx Key Retail 0000 Xxxx Xxx Xxxxx Xxxxxx
191 FedEx Kinko's Key Retail 0000 Xxxx Xxx Xxxxx Xxxxxx
195 Vista Plaza Key Retail 0000 Xxxxx Xxxxxxxx Xxxx
217 Washington Grandview Xxxxxxxx Xxx Xxxxxx 00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxx Xxxx Xxx Industrial 00000 Xxxxxxxx Xxxxxx Xxxx
230 Discount Drug Mart Plaza - Westlake Key Retail 00000 Xxxxxxx Xxxx
231 Fry's Plaza Key Retail 0000-0000 Xxxx Xxxxx Xxxx
232 Shakertown Apartments I Key Multifamily 0000-0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
234 Xxxxxxx Xxxxxxxx Plaza - Kent Key Retail 0000 Xxxx Xxxx Xxxxxx
000 Xxxx Xxxxx Xxxxx Xxxxxxxx 0X Xxx Retail 0000 Xxxx 000xx Xxxxxx
243 The Marketplace at Hanford Shopping Center Key Retail 000 Xxxxx 00xx Xxxxxx
247 Discount Drug Mart Plaza - Hudson Key Retail 0000 Xxxxxx Xxxx
248 Xxxxxxxx Plaza Key Retail 0000 Xxxx Xxxxxx
254 Discount Drug Mart Plaza - Carrollton Key Retail 000 00xx Xxxxxx
000 Xxxxxxx Xxxxx Xxx Retail 000 Xxxx Xxxxx Xxxxxx
257 000 Xxxx Xxx Xxxxxx Xxx Multifamily 000 Xxxx Xxx Xxxxxx
258 Regions Bank Key Retail 0000 Xxxxxxxx Xxx
264 Shakertown Apartments II Key Multifamily 0000-0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
265 CVS - Clayton Key Retail 00000 XX Xxxxxxx 00 Xxxx
285 Panera Bread Key Retail 0000 Xxxxxxxxx Xxx
Cut-Off Date Original Monthly P&I Debt
Loan # City County State Zip Code Balance ($) Balance ($) Service ($)
------ ---------------- --------------- ------- -------- ------------ ----------- ----------------
5 Xxxxxxx Xxxxxx XX 00000 82,000,000 82,000,000 468,936.59
0 Xxxx Xxxx Xxxxxxxxxx XX 00000 65,000,000 65,000,000 369,062.85
00 Xxxxxxxx Xxxx Xxxxxxx XX 00000 34,500,000 34,500,000 200,894.52
00 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 33,500,000 33,500,000 194,009.77
00 Xxxxxxxxx Xxxxxxxx XX 00000 32,803,754 33,000,000 209,603.94
00 Xxxxxxx Xxx XX 00000 22,640,000 22,640,000 128,121.61
00 Xxxx Xxxxx Xxxx Xxxxx XX 00000 16,000,000 16,000,000 99,348.75
61 Xxxx Xxxxxxxx XX 00000 15,600,000 15,600,000 90,147.42
00 Xxxxxxxxx Xxxxxxxxx XX 00000 14,350,000 14,350,000 101,652.23
73 Various Various Various Various 13,775,000 13,775,000 70,022.92
73.01 Xxxxxx Xxxxxx XX 00000 6,788,951 6,788,951
73.02 Xxxxxxxx Xxxxxxxxxxxx XX 00000 4,890,964 4,890,964
73.03 Baytown Xxxxxx XX 00000 2,095,085 2,095,085
00 Xxxxxx Xxxxxxxx Xxxxxx XX 00000 13,500,000 13,500,000 78,354.06
00 Xxxxxx Xxxxxx XX 00000 12,500,000 12,500,000 73,026.03
00 Xxxxxxxx Xxxx Xxxxxx XX 00000 12,063,019 12,100,000 71,769.52
86.01 Slippery Rock Xxxxxx XX 00000 8,828,074 8,855,138
86.02 Slippery Rock Xxxxxx XX 00000 3,234,945 3,244,862
00 Xxxxxxx Xxxxx XX 00000 11,665,000 11,665,000 71,142.00
00 Xxxxxx Xxxxxxx XX 00000 11,550,000 11,550,000 51,493.75
00 Xxxxxx Xxxxxxx XX 00000 10,974,697 11,000,000 63,287.48
000 Xxxxxxxx Xxxxxx XX 00000 10,874,000 10,874,000 66,177.09
102 Xxxxxxx Xxxxxx XX 00000 10,850,000 10,850,000 63,455.57
000 Xxxxxxx Xxxxxxxx XX 00000 10,800,000 10,800,000 51,930.00
000 Xxxx Xxxx Xxxxxx Xxxxxx'x XX 00000 10,500,000 10,500,000 51,506.88
000 Xxxxxxx Xxxxx XX 00000 10,500,000 10,500,000 62,279.33
000 Xxxxxx Xxxxx Xxxxxx XX 00000 10,000,000 10,000,000 47,698.61
000 Xxxxxxxxxx Xxxxxxxxx XX 00000 8,700,000 8,700,000 49,452.24
000 Xxxxxxxxxx Xxxx Xxxxx XX 00000 8,400,000 8,400,000 50,200.34
000 Xxxxxxx Xxxxxxx XX 00000 6,000,000 6,000,000 34,938.18
000 Xxxxxxxx Xxxxxxxx XX 00000 5,770,000 5,770,000 27,446.90
000 Xxx Xxxxx Xxxxxxxxxx XX 00000 5,000,000 5,000,000 29,816.99
000 Xxxxxxx-Xxxxx Xxxxxxx XX 00000 4,792,222 4,800,000 31,372.39
Xxxxxxxxx Xxxxxxx XX 00000 4,620,000 4,620,000 27,556.58
000 Xxxxxxxxx Xxxxxxx XX 00000 3,520,000 3,520,000 20,968.59
000 Xxxxxxxxx Xxxxxxx XX 00000 1,100,000 1,100,000 6,587.99
000 Xxxxxxx Xxxxxxxx XX 00000 4,500,000 4,500,000 26,089.51
000 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 3,695,023 3,700,000 21,898.72
000 Xxxxxxxxxx Xxxxxxxx XX 00000 3,620,000 3,620,000 21,194.38
000 Xxxxxxxx Xxxxxxxx XX 00000 3,335,197 3,346,000 19,229.79
000 Xxxxxx Xxxx XX 00000 3,300,000 3,300,000 19,153.21
000 Xxxxxx Xxxxx XX 00000 3,200,000 3,200,000 19,433.19
000 Xxxx Xxxxxxx XX 00000 3,189,668 3,200,000 18,390.71
000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 2,978,520 3,000,000 25,024.89
000 Xxxxxxx Xxxxx XX 00000 2,722,046 2,730,000 16,631.93
000 Xxxxxx Xxxxxx XX 00000 2,566,857 2,575,000 14,977.96
000 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 2,500,000 2,500,000 14,320.46
000 Xxxxxxxxxx Xxxxxxx XX 00000 2,432,122 2,440,000 14,022.92
000 Xxxxxxxx Xxx Xxxxxxxxxx XX 00000 2,350,000 2,350,000 13,684.12
000 Xxx Xxxx Xxx Xxxx XX 00000 2,289,908 2,300,000 14,734.69
000 Xxxxxxxxx Xxxxxxxxxx XX 00000 2,250,000 2,250,000 13,158.99
000 Xxxxxx Xxxxx XX 00000 2,150,000 2,150,000 13,056.68
000 Xxxxxxx Xxxxxxxx XX 00000 2,100,000 2,100,000 12,281.72
000 Xxxxxxxxxxxxxx Xxxxxx XX 00000 1,700,000 1,700,000 10,050.71
Net
Annual P&I Debt Interest Primary Master Trustee and Sub Servicin Admin. Mortgage
Loan # Service ($) Rate % Servicing Fee Servicing Fee Paying Agent Fee Fee Rate Fee % Rate %
------ --------------- -------- ------------- ------------- ---------------- ------------ ------- --------
5 5,627,239.08 5.4750 0.020 0.030 0.00051 0.05051 5.42449
7 4,428,754.20 5.5000 0.020 0.030 0.00051 0.05051 5.44949
24 2,410,734.24 5.7300 0.020 0.030 0.00051 0.05051 5.67949
26 2,328,117.24 5.6800 0.020 0.030 0.00051 0.05051 5.62949
27 2,515,247.28 5.8500 0.020 0.030 0.00051 0.05051 5.79949
46 1,537,459.32 5.4700 0.020 0.030 0.00051 0.05051 5.41949
60 1,192,185.00 6.3300 0.020 0.030 0.00051 0.05051 6.27949
61 1,081,769.04 5.6600 0.020 0.030 0.00051 0.05051 5.60949
71 1,219,826.76 5.8600 0.020 0.030 0.00051 0.05051 5.80949
73 840,275.04 6.0000 0.020 0.030 0.00051 0.05051 5.94949
73.01
73.02
73.03
76 940,248.72 5.7000 0.020 0.030 0.00051 0.05051 5.64949
83 876,312.36 5.7600 0.020 0.030 0.00051 0.05051 5.70949
86 861,234.24 5.9000 0.020 0.030 0.00051 0.0500 0.10051 5.79949
86.01
86.02
93 853,704.00 6.1600 0.020 0.030 0.00051 0.05051 6.10949
94 617,925.00 5.3500 0.020 0.030 0.00051 0.05051 5.29949
98 759,449.76 5.6200 0.020 0.030 0.00051 0.05051 5.56949
101 794,125.08 6.1400 0.020 0.030 0.00051 0.05051 6.08949
102 761,466.84 5.7700 0.020 0.030 0.00051 0.05051 5.71949
103 623,160.00 5.7700 0.020 0.030 0.00051 0.05051 5.71949
105 618,082.56 5.7900 0.020 0.030 0.00051 0.05051 5.73949
106 747,351.96 5.9000 0.020 0.030 0.00051 0.05051 5.84949
114 572,383.32 5.6300 0.020 0.030 0.00051 0.05051 5.57949
127 593,426.88 5.5100 0.020 0.030 0.00051 0.0500 0.10051 5.40949
130 602,404.08 5.9700 0.020 0.030 0.00051 0.05051 5.91949
157 419,258.16 5.7300 0.020 0.030 0.00051 0.05051 5.67949
164 329,362.80 5.6300 0.020 0.030 0.00051 0.0500 0.10051 5.52949
182 357,803.88 5.9500 0.020 0.030 0.00051 0.05051 5.89949
186 376,468.68 6.3200 0.020 0.030 0.00051 0.0500 0.10051 6.21949
330,678.96 0.0000
190 251,623.08 5.9400 0.020 0.030 0.00051 0.05051 5.88949
191 79,055.88 5.9900 0.020 0.030 0.00051 0.05051 5.93949
195 313,074.12 5.6900 0.020 0.030 0.00051 0.0500 0.10051 5.58949
217 262,784.64 5.8800 0.020 0.030 0.00051 0.05051 5.82949
220 254,332.56 5.7800 0.020 0.030 0.00051 0.05051 5.72949
230 230,757.48 5.6100 0.020 0.030 0.00051 0.05051 5.55949
231 229,838.52 5.7000 0.020 0.030 0.00051 0.05051 5.64949
232 233,198.28 6.1200 0.020 0.030 0.00051 0.05051 6.06949
234 220,688.52 5.6100 0.020 0.030 0.00051 0.05051 5.55949
238 300,298.68 5.8200 0.020 0.030 0.00051 0.0500 0.10051 5.71949
243 199,583.16 6.1500 0.020 0.030 0.00051 0.0500 0.10051 6.04949
247 179,735.52 5.7200 0.020 0.030 0.00051 0.05051 5.66949
248 171,845.52 5.5800 0.020 0.030 0.00051 0.0500 0.10051 5.47949
254 168,275.04 5.6100 0.020 0.030 0.00051 0.05051 5.55949
256 164,209.44 5.7300 0.020 0.030 0.00051 0.05051 5.67949
257 176,816.28 5.9400 0.020 0.030 0.00051 0.05051 5.88949
258 157,907.88 5.7700 0.020 0.030 0.00051 0.05051 5.71949
264 156,680.16 6.1200 0.020 0.030 0.00051 0.05051 6.06949
265 147,380.64 5.7700 0.020 0.030 0.00051 0.05051 5.71949
285 120,608.52 5.8700 0.020 0.030 0.00051 0.05051 5.81949
Monthly
Payment Maturity/ Amort
Loan # Accrual Type Term Date Rem. Term ARD Date Term Rem. Amort Title Type ARD Loan
------ ------------ ---- ------- --------- --------- ----- ---------- ------------- --------
5 Actual/360 120 1 117 12/1/2016 360 360 Fee/Leasehold
7 Actual/360 120 1 118 1/1/2017 360 360 Fee
24 Actual/360 120 1 118 1/1/2017 360 360 Fee
26 Actual/360 120 1 118 1/1/2017 360 360 Fee Yes
27 Actual/360 120 1 116 11/1/2016 300 296 Fee Yes
46 Actual/360 120 1 119 2/1/2017 360 360 Fee
60 30/360 120 1 112 7/1/2016 360 360 Fee
61 Actual/360 120 1 119 2/1/2017 360 360 Fee
71 Actual/360 120 1 120 3/1/2017 240 240 Fee Yes
73 Actual/360 120 1 120 3/1/2017 0 0 Fee
73.01 Fee
73.02 Fee
73.03 Fee
76 Actual/360 120 1 118 1/1/2017 360 360 Fee
83 Actual/360 120 1 119 2/1/2017 360 360 Fee
86 Actual/360 120 1 117 12/1/2016 360 357 Fee
86.01 Fee
86.02 Fee
93 Actual/360 84 1 84 3/1/2014 360 360 Leasehold
94 30/360 120 1 118 1/1/2017 0 0 Fee
98 Actual/360 120 1 118 1/1/2017 360 358 Leasehold
101 Actual/360 84 1 84 3/1/2014 360 360 Leasehold
102 Actual/360 120 1 119 2/1/2017 360 360 Fee
103 30/360 120 1 118 1/1/2017 0 0 Fee
105 Actual/360 120 1 118 1/1/2017 0 0 Fee
106 Actual/360 120 1 119 2/1/2017 360 360 Leasehold
114 Actual/360 120 1 118 1/1/2017 0 0 Fee
127 Actual/360 120 1 118 1/1/2017 360 360 Fee
130 Actual/360 120 1 117 12/1/2016 360 360 Leasehold
157 Actual/360 120 1 118 1/1/2017 360 360 Fee
164 Actual/360 120 1 120 3/1/2017 0 0 Fee Yes
182 Actual/360 120 1 118 1/1/2017 360 360 Fee
186 Actual/360 120 1 119 2/1/2017 312 311 Fee Yes
Actual/360 120 1 118 1/1/2017 360 360 Various
190 Actual/360 120 1 118 1/1/2017 360 360 Fee/Leasehold
191 Actual/360 120 1 118 1/1/2017 360 360 Fee
195 Actual/360 120 1 118 1/1/2017 360 360 Fee
217 Actual/360 120 1 119 2/1/2017 360 359 Fee
220 Actual/360 120 1 118 1/1/2017 360 360 Fee
230 Actual/360 120 1 117 12/1/2016 360 357 Fee Yes
231 Actual/360 120 1 119 2/1/2017 360 360 Fee
232 Actual/360 120 1 116 11/1/2016 360 360 Fee
234 Actual/360 120 1 117 12/1/2016 360 357 Fee Yes
238 Actual/360 180 1 178 1/1/2022 180 178 Fee
243 Actual/360 120 1 117 12/1/2016 360 357 Fee
247 Actual/360 120 1 117 12/1/2016 360 357 Fee Yes
248 Actual/360 120 1 118 1/1/2017 360 360 Fee
254 Actual/360 120 1 117 12/1/2016 360 357 Fee Yes
256 Actual/360 120 1 118 1/1/2017 360 360 Fee
257 Actual/360 180 1 177 12/1/2021 300 297 Fee
258 Actual/360 120 1 117 12/1/2016 360 360 Fee
264 Actual/360 120 1 116 11/1/2016 360 360 Fee
265 Actual/360 120 1 117 12/1/2016 360 360 Fee
285 Actual/360 120 1 117 12/1/2016 360 360 Fee
Partial
ARD Environmental Cross Cross Defeasance
Loan # Step Up Insurance Defaulted Collateralized Allowed
------ --------------------------------------------- ------------- --------- -------------- -----------
5 No
7 No
24 No
26 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
27 Greater of: (i) Initial Interest Rate plus 2% No
or (ii) Treasury Rate plus 2%.
46 No
60 No
61 No
71 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
73 No
73.01 No
73.02 No
73.03 Xx
00 Xx
00 Xx
00 Xx
86.01 No
86.02 Xx
00 Xx
00 Xx
00 Xx
000 Xx
102 No
103 No
105 No
106 No
114 No
127 No
130 No
157 No
164 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
182 No
186 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
No Yes Yes
190 No Yes Yes
191 No Yes Yes
195 Yes
217 No
220 No
230 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
231 No
232 No
234 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
238 No
243 No
247 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
248 No
254 Greater of: (i) Initial Interest Rate No
plus 2% or (ii) Treasury Rate plus 2%.
256 No
257 Xx
000 Xx
000 Xx
000 Xx
000 Xx
Upfront Upfront Upfront Upfront
Letter of Lockbox Holdback Engineering Capex TI/LC RE Tax
Loan # Credit Type Amount Reserve ($) Reserve ($) Reserve ($) Reserve ($)
------ --------- ------------------------------- --------- ----------- ----------- ----------- -----------
5 Soft at closing, Springing Hard 1,000,000 3,301,480
7
24 None at Closing, Springing Hard 12,500
26 Hard 51,250 55,213
27 Hard 45,500 8,470 104,961
46 None at Closing, Springing Hard 978
60 58,314
61 None at Closing, Springing Hard 2,132,000 46,055
71 None at Closing, Springing Hard 51,110
73 1,769
73.01
73.02
73.03
76 2,688
83 32,446
86 35,860
86.01
86.02
93 1,028 2,500 100,705
94
98 82,375
101 15,472
102 411 1,250 7,590
103
105 41,064
106
114 None at Closing, Springing Hard 26,690
127 5,515
130 800 5,040
157
164 None at Closing, Springing Hard
182 1,035 28,841
186 None at Closing, Springing Hard
76 15,745
190 None at Closing, Springing Hard 13,165
191 None at Closing, Springing Hard 76 2,580
195 712 2,083 81,797
217 387 2,491 19,495
220
230 None at Closing, Springing Hard
231 7,608 30,000
232 3,033 30,003
234 None at Closing, Springing Hard 1,420
238
243 159 490 1,434
247 None at Closing, Springing Hard
248 40,728
254 None at Closing, Springing Hard
256 None at Closing, Springing Hard 2,946
257 None at Closing, Springing Hard
258
264 150,000 2,411 20,936
265
285 1,167
Upfront Upfront Monthly Monthly
Ins. Other Capex Capex
Loan # Reserve ($) Reserve ($) Reserve ($) Reserve Cap ($) Monthly TI/LC Reserve ($)
------ ----------- ----------- ------------------------------------ --------------- --------------------------------------
5 6,670.00 (Springing) 240,105 25,948.00 (Springing)
7
24 3,916.67 (Springing) 12,500.00 (until an Investment Grade
Event or Cash Flow Sweep Suspension
Event)
26 3,401 5,000
27 8,470 304,920
46 978 35,211
60
61 9,650 2,397,926 564.33 (Commencing in February 2013) 13,544 564.33 (Commencing in February 2013)
71 46,820 400,000 1,000.00 (Springing) 24,000 1,000.00 (Springing)
73 1,769 42,456 300,000.00 (Springing, one-time
deposit one year prior to expiration
of lease for Nationwide property)
73.01
73.02
73.03
76 35,255 3,000 2,688 96,750
83 23,505 2,375.00 (Commencing on 3/1/2010) 85,600 400.00 (Commencing on 3/1/2010)
86 15,056 415,000 3,933.00 (Springing)
86.01
86.02
93 72,014 1,028 37,008 2,500
94 5,000 1,886 67,896 5,693.00 (Springing)
98 7,433
101 64,034
102 36,565 205,412 411 1,250
103 1,497.00 (Springing) 53,892 3,851.00 (Springing)
105 1,892.00 (Springing)
106 104,971
114 6,696
127 781
130 55,000 800 2,083.33 (starting 1/1/2010)
157 1,812.00 (Springing)
164
182 3,846 1,035
186 101,925 506.25 (Springing)
611 451
190 375
191 611 76
195 712 25,641 2,083
217 2,566 387 2,490
220 725.00 (Springing)
230
231 317.00 (Springing) 7,608 1,886.00 (Springing)
232 13,669 3,033 109,203
234 1,420
238 33,277
243 1,015 50,000 159 5,725 490
247
248
254
256 4,206 143.00 (Springing)
257
258
264 9,447 150,000 2,411 86,778
265
285 1,167
Monthly Monthly Monthly Monthly
TI/LC RE Tax Ins. Other
Loan # Reserve Cap (Reserve ($) Reserve ($) Reserve ($)
--------------------- ------------ ---------------------------------- -----------
5 934,122
7
24
26 55,213 Home Depot - 1,700.39 (Springing),
All other spaces -1,700.39
27 27,671
46 9,415
60 6,479
61 90,000 11,514
71 120,000 7,301 5,202
73
73.01
73.02
73.03
76 17,128 3,917
83 14,400 8,111 2,351
86 11,953 7,528
86.01
86.02
93 90,000 33,567
94 204,954
98 20,594 1,858
101 7,347
102 75,000 2,530 4,063
103 231,030
105 10,266
106
114 6,673 939
127 5,515
130 150,000 5,040 4,813
157
164
182 7,210 769
186
Various 305
190 6,582.54
(Springing)
191 1,290 305
195 75,000
217 59,766 3,899 642
220
230
231 30,000 4,638.33 1,258.86
(Springing) (Springing)
232 6,001 1,243
234
238
243 53,000 478 254
247
248
254
256 737 600.86 (Springing)
257
258
264 4,187 859
265
285 42,000
Xxxxx Xxxxx
Loan # Period - Late Period - Default
------ ------------------------------------------------ -------------------------
5 0 (excluding principal due on the Maturity Date) 5
7 5 5
24 5 5
26 5 5
27 5 5
46 5 5
60 5 5
61 5 5
71 5 5
73 5 5
73.01
73.02
73.03
76 5 5
83 5 5
86 5 5
86.01
86.02
93 5 5
94 5 (excluding payment on Maturity Date) 5, 2 (after Maturity Date)
98 10 5
101 5 5
102 5 5
103 5 5, 2 (after Maturity Date)
105 5 5
106 5 5
114 5 5
127 5 5
130 5 (excluding payment on Maturity Date) 5
157 5 5
164 7 7
182 5 5
186 10 10
5 5
190 5 5
191 5 5
195 5 5
217 10 10
220 5 5
230 5 5
231 5 5
232 10 10
234 5 5
238 5 5
243 5 5
247 5 5
248 5 5
254 5 5
256 5 5
257 5 5
258 5 5
264 10 10
265 5 5
285 5 5
SCHEDULE III
First Two Pages of the February 20, 2007 Free Writing Prospectus
The information in this free writing prospectus may be amended and/or
supplemented prior to the time of sale. The information in this free writing
prospectus supersedes any contrary information contained in any prior free
writing prospectus relating to the subject securities and will be superseded by
any contrary information contained in any subsequent free writing prospectus
prior to the time of sale. In addition, certain information regarding the
subject securities is not yet available and, accordingly, has been omitted from
this free writing prospectus.
THE DATE OF THIS FREE WRITING PROSPECTUS IS FEBRUARY 20, 2007
The depositor has filed a registration statement (including a prospectus)
with the SEC (SEC File No. 333-130408) for the offering to which this
communication relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed with the SEC
for more complete information about the depositor, the issuing entity and this
offering. You may get these documents for free by visiting XXXXX on the SEC Web
site at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll free 000-000-0000.
$4,115,871,000
(APPROXIMATE)
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-5
as Issuing Entity
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-5
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Depositor
XXXXXXX XXXXX MORTGAGE LENDING, INC.
COUNTRYWIDE COMMERCIAL REAL ESTATE FINANCE, INC.
KEYBANK NATIONAL ASSOCIATION
IXIS REAL ESTATE CAPITAL INC.
as Sponsors and Loan Sellers
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Loan Seller
---------------
We are Xxxxxxx Xxxxx Mortgage Investors, Inc., the depositor with respect
to the securitization transaction that is the subject of this free writing
prospectus. Only the classes of commercial mortgage pass-through certificates
listed in the table below are being offered by this free writing prospectus and
the accompanying base prospectus. The offered certificates represent beneficial
interests only in the issuing entity identified above and will not represent
obligations of or interests in the depositor, any sponsor or any of their
respective affiliates. The assets of the issuing entity will consist primarily
of a pool of 333 commercial, multifamily and manufactured housing community
mortgage loans with an initial mortgage pool balance of approximately
$4,425,668,580 and the other characteristics described in this free writing
prospectus.
INVESTING IN THE OFFERED CERTIFICATES INVOLVES RISKS. YOU SHOULD CAREFULLY
REVIEW THE FACTORS DESCRIBED UNDER "RISK FACTORS" BEGINNING ON PAGE 50 OF THIS
FREE WRITING PROSPECTUS AND ON PAGE 18 OF THE ACCOMPANYING BASE PROSPECTUS.
The holders of each class of offered certificates will be entitled to
receive monthly distributions of interest, principal or both, commencing in
April 2007. The offered certificates will accrue interest from March 1, 2007.
The pass-through rates for some classes of the offered certificates will be
variable. Credit enhancement for any particular class of the offered
certificates is being provided through the subordination of various other
classes, including multiple non-offered classes, of the certificates.
APPROXIMATE INITIAL APPROXIMATE
TOTAL PRINCIPAL INITIAL ASSUMED FINAL RATED FINAL
EXPECTED RATINGS BALANCE OR NOTIONAL PASS-THROUGH DISTRIBUTION DISTRIBUTION
(FITCH/XXXXX'X/S&P) AMOUNT RATE DATE DATE
---------- ------------------- -------------------- ------------ ------------- ------------
Class X-0 XXX/Xxx/XXX $ 82,771,000 % December 2011 August 2048
Class X-0 XXX/Xxx/XXX $ [123,043,000](1) % March 2012 August 2048
Class X-0 XXX/Xxx/XXX $ [193,342,000](1) % October 2016 August 2048
Class A-SB AAA/Aaa/AAA $ 183,225,000 % October 2016 August 2048
Class X-0 XXX/Xxx/XXX $ [1,309,972,000](1) % January 2017 August 2048
Class A-1A AAA/Aaa/AAA $ 1,205,615,000 % January 2017 August 2048
Class AM . AAA/Aaa/AAA $ [442,566,000](1) % January 2017 August 2048
Class AJ . AAA/Aaa/AAA $ [387,246,000](1) % February 2017 August 2048
Class B .. AA/Aa2/AA $ 77,450,000 % February 2017 August 2048
Class C .. AA-/Aa3/AA- $ 33,192,000 % February 2017 August 2048
Class D .. A/A2/A $ 77,449,000 % February 2017 August 2048
(footnotes to table begin on page 9)
---------------
No one will list the offered certificates on any national securities
exchange or any automated quotation system of any registered securities
association. The Securities and Exchange Commission and state securities
regulators have not approved or disapproved of the certificates offered to you
or determined if this free writing prospectus or the accompanying base
prospectus is adequate or accurate. Any representation to the contrary is a
criminal offense.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide Securities
Corporation, IXIS Securities North America Inc., KeyBanc Capital Markets, a
division of McDonald Investments Inc., Banc of America Securities LLC and Bear,
Xxxxxxx & Co. Inc. are the underwriters of this offering. Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Countrywide Securities Corporation are acting as
joint bookrunning managers in the following manner: Countrywide Securities
Corporation is acting as sole bookrunning manager with respect to % of the class
certificates, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is acting
as sole bookrunning manager with respect to the remainder of the class
certificates and all other classes of offered certificates. IXIS Securities
North America Inc., KeyBanc Capital Markets, a division of McDonald Investments
Inc., Banc of America Securities LLC and Bear, Xxxxxxx & Co. Inc. will act as
co-managers. We will sell the offered certificates to the underwriters, who will
sell their respective allotments of those securities from time to time in
negotiated transactions or otherwise at varying prices to be determined at the
time of sale. The underwriters expect to deliver the offered certificates to
purchasers on or about March 14, 2007. We expect to receive from this offering
approximately $ in sale proceeds, plus accrued interest on the offered
certificates from and including March 1, 2007, before deducting expenses payable
by us. Not every underwriter will have an obligation to buy offered certificates
from us.
XXXXXXX XXXXX & CO. COUNTRYWIDE SECURITIES CORPORATION
IXIS SECURITIES NORTH AMERICA BEAR, XXXXXXX & CO. INC.
KEYBANC CAPITAL MARKETS BANC OF AMERICA SECURITIES LLC
SCHEDULE IV
First Two Pages of the February 26, 2007 Free Writing Prospectus
The information in this free writing prospectus may be amended and/or
supplemented prior to the time of sale. The information in this free writing
prospectus supersedes any contrary information contained in any prior free
writing prospectus relating to the subject securities and will be superseded by
any contrary information contained in any subsequent free writing prospectus
prior to the time of sale. In addition, certain information regarding the
subject securities is not yet available and, accordingly, has been omitted from
this free writing prospectus.
THE DATE OF THIS FREE WRITING PROSPECTUS IS FEBRUARY 26, 2007
The depositor has filed a registration statement (including a prospectus)
with the SEC (SEC File No. 333-130408) for the offering to which this
communication relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed with the SEC
for more complete information about the depositor, the issuing entity and this
offering. You may get these documents for free by visiting XXXXX on the SEC Web
site at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll free 000-000-0000.
$4,107,828,000
(APPROXIMATE)
ML-CFC COMMERCIAL MORTGAGE TRUST 2007-5
as Issuing Entity
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-5
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Depositor
XXXXXXX XXXXX MORTGAGE LENDING, INC.
COUNTRYWIDE COMMERCIAL REAL ESTATE FINANCE, INC.
KEYBANK NATIONAL ASSOCIATION
IXIS REAL ESTATE CAPITAL INC.
as Sponsors and Loan Sellers
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Loan Seller
---------------
We are Xxxxxxx Xxxxx Mortgage Investors, Inc., the depositor with respect
to the securitization transaction that is the subject of this free writing
prospectus. Only the classes of commercial mortgage pass-through certificates
listed in the table below are being offered by this free writing prospectus and
the accompanying base prospectus. The offered certificates represent beneficial
interests only in the issuing entity identified above and will not represent
obligations of or interests in the depositor, any sponsor or any of their
respective affiliates. The assets of the issuing entity will consist primarily
of a pool of 333 commercial, multifamily and manufactured housing community
mortgage loans with an initial mortgage pool balance of approximately
$4,417,019,866 and the other characteristics described in this free writing
prospectus.
INVESTING IN THE OFFERED CERTIFICATES INVOLVES RISKS. YOU SHOULD CAREFULLY
REVIEW THE FACTORS DESCRIBED UNDER "RISK FACTORS" BEGINNING ON PAGE 51 OF THIS
FREE WRITING PROSPECTUS AND ON PAGE 19 OF THE ACCOMPANYING BASE PROSPECTUS.
The holders of each class of offered certificates will be entitled to
receive monthly distributions of interest, principal or both, commencing in
April 2007. The offered certificates will accrue interest from March 1, 2007.
The pass-through rates for some classes of the offered certificates will be
variable. Credit enhancement for any particular class of the offered
certificates is being provided through the subordination of various other
classes, including multiple non-offered classes, of the certificates.
APPROXIMATE INITIAL APPROXIMATE
TOTAL PRINCIPAL INITIAL ASSUMED FINAL RATED FINAL
EXPECTED RATINGS BALANCE OR NOTIONAL PASS-THROUGH DISTRIBUTION DISTRIBUTION
(FITCH/XXXXX'X/S&P) AMOUNT RATE DATE DATE
---------- ------------------- -------------------- ------------ ------------- ------------
Class X-0 XXX/Xxx/XXX $ 87,368,000 % December 2011 August 2048
Class X-0 XXX/Xxx/XXX $ [123,315,000](1) % March 2012 August 2048
Class X-0 XXX/Xxx/XXX $ [153,428,000](1) % July 2016 August 2048
Class A-SB AAA/Aaa/AAA $ 187,053,000 % October 2016 August 2048
Class X-0 XXX/Xxx/XXX $ [1,335,152,000](1) % January 2017 August 2048
Class A-1A AAA/Aaa/AAA $ 1,205,597,000 % January 2017 August 2048
Class AM . AAA/Aaa/AAA $ [441,702,000](1) % January 2017 August 2048
Class AJ . AAA/Aaa/AAA $ [386,490,000](1) % February 2017 August 2048
Class B .. AA/Aa2/AA $ 77,297,000 % February 2017 August 2048
Class C .. AA-/Aa3/AA- $ 33,128,000 % February 2017 August 2048
Class D .. A/A2/A $ 77,298,000 % February 2017 August 2048
(footnotes to table begin on page 9)
---------------
No one will list the offered certificates on any national securities
exchange or any automated quotation system of any registered securities
association. The Securities and Exchange Commission and state securities
regulators have not approved or disapproved of the certificates offered to you
or determined if this free writing prospectus or the accompanying base
prospectus is adequate or accurate. Any representation to the contrary is a
criminal offense.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Countrywide Securities
Corporation, IXIS Securities North America Inc., KeyBanc Capital Markets, a
Division of McDonald Investments Inc., Banc of America Securities LLC and Bear,
Xxxxxxx & Co. Inc. are the underwriters of this offering. Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Countrywide Securities Corporation are
acting as joint bookrunning managers in the following manner: Countrywide
Securities Corporation is acting as sole bookrunning manager with respect to
% of the class certificates, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated is acting as sole bookrunning manager with respect to the
remainder of the class certificates and all other classes of offered
certificates. IXIS Securities North America Inc., KeyBanc Capital Markets, a
Division of McDonald Investments Inc., Banc of America Securities LLC and Bear,
Xxxxxxx & Co. Inc. will act as co-managers. We will sell the offered
certificates to the underwriters, who will sell their respective allotments of
those securities from time to time in negotiated transactions or otherwise at
varying prices to be determined at the time of sale. The underwriters expect to
deliver the offered certificates to purchasers on or about March 14, 2007. We
expect to receive from this offering approximately $ in sale proceeds,
plus accrued interest on the offered certificates from and including March 1,
2007, before deducting expenses payable by us. Not every underwriter will have
an obligation to buy offered certificates from us.
XXXXXXX XXXXX & CO. COUNTRYWIDE SECURITIES CORPORATION
IXIS SECURITIES NORTH AMERICA BEAR, XXXXXXX & CO. INC.
KEYBANC CAPITAL MARKETS BANC OF AMERICA SECURITIES LLC
