Exhibit 10.2
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER,
NATIXIS REAL ESTATE CAPITAL INC.
and
NATIXIS COMMERCIAL MORTGAGE FUNDING, LLC
SELLERS
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 20, 2007
$117,370,119
Fixed Rate Mortgage Loans
Series 2007-C1
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 20, 2007, is between X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as purchaser (the "Purchaser"), and Natixis Real Estate
Capital Inc. ("Natixis RE") and Natixis Commercial Mortgage Funding, LLC
("Natixis CMF"), as sellers (each, a "Seller" and collectively, "Sellers").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the pooling and servicing agreement, dated
as of December 20, 2007 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor (the "Depositor"), Capmark Finance Inc., as master
servicer ("Master Servicer"), Midland Loan Services, Inc. ("Midland"), as
special servicer (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (in such capacity, the "Trustee") and as paying agent (in such capacity,
the "Paying Agent"), pursuant to which the Purchaser will sell the Mortgage
Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Natixis RE Mortgage Loans" refers to the
mortgage loans listed on Exhibit A-1, the term "Natixis CMF Mortgage Loans"
refers to the mortgage loans listed on Exhibit A-2, the term "Mortgage Loans"
refers to the Natixis RE Mortgage Loans and the Natixis CMF Mortgage Loans,
collectively, and the term "Mortgaged Properties" refers to the properties
securing such Mortgage Loans.
The Purchaser and the Sellers wish to prescribe the manner of sale
of the Natixis RE Mortgage Loans from Natixis RE to the Purchaser and the sale
of the Natixis CMF Mortgage Loans from Natixis CMF to the Purchaser and in
consideration of the premises and the mutual agreements hereinafter set forth,
agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, each of Natixis RE and
Natixis CMF does hereby sell, transfer, assign, set over and convey to the
Purchaser, without recourse, all of its right, title, and interest (subject to
certain agreements regarding servicing as provided in the Pooling and Servicing
Agreement, subservicing agreements permitted thereunder and that certain
Servicing Rights Purchase and Sale Agreement, dated as of the date hereof
between the Master Servicer and the Sellers) in and to the Natixis RE Mortgage
Loans, in the case of Natixis RE, and the Natixis CMF Mortgage Loans, in the
case of Natixis CMF, including all interest and principal received on or with
respect to such Mortgage Loans after the Cut-off Date (other than payments of
principal and interest first due on the Mortgage Loans on or before the Cut-off
Date). Upon the sale of the Mortgage Loans, the ownership of each related
Mortgage Note, the Mortgage and the other contents of the related Mortgage File
will be vested in the Purchaser and immediately thereafter the Trustee and the
ownership of records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of each Seller (other than the
records and documents described in the proviso to Section 3(a) hereof) shall
immediately vest in the Purchaser and immediately thereafter the Trustee. Each
Seller's records will accurately reflect the sale of each such Mortgage Loan to
the Purchaser. The Depositor will sell the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-SB, Class X-2, Class A-M and Class A-J Certificates (the
"Offered Certificates") to the underwriters specified in the underwriting
agreement, dated December 18, 2007 (the "Underwriting Agreement"), between the
Depositor and X.X. Xxxxxx Securities Inc. ("JPMSI") for itself and as
representative of Natixis Securities North America Inc. ("NatixisNA" and,
together with JPMSI, the "Underwriters"), and the Depositor will sell the Class
X-1, Class B, Class C, Class D Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class T and Class NR
Certificates (the "Private Certificates") to JPMSI, as the initial purchaser
(together with the Underwriters, the "Dealers") specified in the certificate
purchase agreement, dated December 18, 2007 (the "Certificate Purchase
Agreement"), between the Depositor and JPMSI.
The sale and conveyance of the Mortgage Loans is being conducted on
an arms-length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Sellers or at the
Sellers' direction $123,675,666.40 (which amount is inclusive of accrued
interest) in immediately available funds minus the costs set forth in Section 9
hereof. The purchase and sale of the Mortgage Loans shall take place on the
Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the Trustee. 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 shall be promptly remitted to, the applicable Seller.
The transfer of each Mortgage Loan shall be reflected on the
applicable Seller's balance sheets and other financial statements as a sale of
such Mortgage Loan by the applicable Seller to the Purchaser. Each Seller
intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale
for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of such
Mortgage Loan by the Purchaser from the applicable Seller. The Purchaser intends
to treat the transfer of each Mortgage Loan from the applicable Seller as a
purchase for tax purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs each Seller, and each Seller hereby
agrees, upon the transfer of the applicable Mortgage Loans contemplated herein,
to deliver on the Closing Date to the Trustee or a Custodian appointed thereby,
all documents, instruments and agreements required to be delivered by the
Purchaser to the Trustee with respect to the Mortgage Loans under Sections
2.01(b) and (c) of the Pooling and Servicing Agreement, and meeting all the
requirements of such Sections 2.01(b) and (c), and such other documents,
instruments and agreements as the Purchaser or the Trustee shall reasonably
request and which are in the Seller's possession or under the Seller's control.
In addition, each Seller agrees to deliver or cause to be delivered to the
Master Servicer, the Servicing File for each Mortgage Loan transferred pursuant
to this Agreement; provided that neither Seller shall be required to deliver any
draft documents, privileged or internal communications or credit underwriting or
due diligence analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the applicable Seller shall pay the Transfer
Modification Costs required to transfer the letter of credit to the Purchaser as
described in such Section 1; provided that if the Mortgage Loan documents
require the related Mortgagor to pay any Transfer Modification Costs, such
Transfer Modification Costs shall be an expense of the Mortgagor unless such
Mortgagor fails to pay such Transfer Modification Costs after the Master
Servicer, consistent with its obligations under the Pooling and Servicing
Agreement, has exercised reasonable efforts to collect such Transfer
Modification Costs from such Mortgagor, in which case the Master Servicer shall
give the applicable Seller notice of such failure and the applicable Seller
shall pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. Each Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the applicable
Mortgage Loans. The parties intend that such conveyance of each Seller's right,
title and interest in and to such Mortgage Loans pursuant to this Agreement
shall constitute a purchase and sale and not a loan. If such conveyance is
deemed to be a pledge and not a sale, then the parties also intend and agree
that the applicable Seller shall be deemed to have granted, and in such event
does hereby grant, to the Purchaser, a first priority security interest in all
of its right, title and interest in, to and under the applicable Mortgage Loans,
all payments of principal or interest on such Mortgage Loans due after the
Cut-off Date, all other payments made in respect of such Mortgage Loans after
the Cut-off Date (except to the extent such payments were due on or before the
Cut-off Date) and all proceeds thereof and that this Agreement shall constitute
a security agreement under applicable law. If such conveyance is deemed to be a
pledge and not a sale, the applicable Seller consents to the Purchaser
hypothecating and transferring such security interest in favor of the Trustee
and transferring the obligation secured thereby to the Trustee.
SECTION 5. Covenants of the Sellers. Each Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the applicable Mortgage Loans and the Assignments of Mortgage
from such Seller to the Trustee in connection with the Pooling and Servicing
Agreement; provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage Loans, Assignment of Mortgage or other recorded document
in favor of the Trustee will be required to be prepared or delivered and
instead, such Seller shall take all actions as are necessary to cause the
Trustee to be shown as, and shall deliver evidence of any such transfers to the
Master Servicer and the Special Servicer, and the Trustee shall take all actions
necessary to confirm that it is shown as, the owner of the related Mortgage on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. All recording fees
relating to the initial recordation of such intermediate assignments and
Assignments of Mortgage shall be paid by such Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the Master Servicer, in order to assist and facilitate in the
transfer of the servicing of the applicable Mortgage Loans to the Master
Servicer, including effectuating the transfer of any letters of credit with
respect to any applicable Mortgage Loan to the Master Servicer on behalf of the
Trustee for the benefit of Certificateholders. Prior to the date that a letter
of credit with respect to any Mortgage Loan is transferred to the Master
Servicer, the applicable Seller will cooperate with the reasonable requests of
the Master Servicer or Special Servicer, as applicable, in connection with
effectuating a draw under such letter of credit as required under the terms of
the related Mortgage Loan documents; and
(c) if, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of counsel for the
Underwriters, a prospectus relating to the Offered Certificates is required by
applicable law to be delivered in connection with sales thereof by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus Supplement, including Annex X-0,
X-0 and A-3 thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or such Seller, in order to make the
statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annex X-0, X-0 and A-3
thereto and the Diskette included therewith, with respect to any information
relating to the applicable Mortgage Loans or such Seller (or in the case of
Natixis CMF, Natixis RE on behalf of such Seller), to comply with applicable
law, the Seller shall do all things necessary to assist the Depositor to prepare
and furnish, at the expense of the Seller (to the extent that such amendment or
supplement relates to the Seller, the Mortgage Loans listed on Exhibit A-1 or
Exhibit A-2, as applicable and/or any information relating to the same, as
provided by the Seller), to the Underwriters such amendments or supplements to
the Prospectus Supplement as may be necessary, so that the statements in the
Prospectus Supplement as so amended or supplemented, including Annex X-0, X-0
and A-3 thereto and the Diskette included therewith, with respect to any
information relating to the applicable Mortgage Loans or such Seller, will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus Supplement, including Annex
X-0, X-0 and A-3 thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, will comply with
applicable law. All terms used in this clause (c) and not otherwise defined
herein shall have the meaning set forth in the Indemnification Agreement, dated
as of December 18, 2007 between the Purchaser and Natixis RE (the
"Indemnification Agreement").
SECTION 6. Representations and Warranties.
(a) Each Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) (A) in the case of Natixis Re, it is a corporation duly
organized, validly existing and in good standing under the laws of the
State of New York and (B) in the case of Natixis CMF, it is a limited
liability company, duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(ii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is duly qualified to transact business in the State of
New York. Such Seller is in compliance with the laws of each state in
which any Mortgaged Property is located to the extent necessary so that a
subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement
by such Seller has been duly authorized by all requisite action by such
Seller's board of directors and will not violate or breach any provision
of its organizational documents;
(vi) this Agreement has been duly executed and delivered by
such Seller and constitutes a legal, valid and binding obligation of such
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending
to which such Seller is a party or of which any property of such Seller is
the subject which, if determined adversely to such Seller, would
reasonably be expected to adversely affect (A) the transfer of the
applicable Mortgage Loans and the Mortgage Loan documents as contemplated
herein, (B) the execution and delivery by such Seller or enforceability
against such Seller of the applicable Mortgage Loans or this Agreement, or
(C) the performance of such Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by such Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by such Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time
or both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the applicable Mortgage Loans and the performance by
such Seller of all of its obligations under this Agreement and the
consummation by such Seller of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which such
Seller is a party or by which such Seller is bound or to which any of the
property or assets of such Seller is subject, nor will any such action
result in any violation of the provisions of any applicable law or statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Seller, or any of its properties,
except for conflicts, breaches, defaults and violations which individually
and in the aggregate would not have a material adverse effect on the
transactions contemplated herein; and no consent, approval, authorization,
order, license, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by such
Seller of the transactions contemplated by this Agreement, other than any
consent, approval, authorization, order, license, registration or
qualification that has been obtained or made;
(x) it has either (A) not dealt with any Person (other than
the Purchaser or the Dealers or their respective affiliates or any
servicer of a related Mortgage Loan) that may be entitled to any
commission or compensation in connection with the sale or purchase of the
related Mortgage Loans or entering into this Agreement or (B) paid in full
any such commission or compensation (except with respect to any servicer
of a related Mortgage Loan, any commission or compensation that may be due
and payable to such servicer if such servicer is terminated and does not
continue to act as a servicer);
(xi) it is solvent and the sale of the applicable Mortgage
Loans hereunder will not cause it to become insolvent; and the sale of the
applicable Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud any of such Seller's creditors; and
(xii) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, such Seller (or in the case of Natixis
CMF, Natixis RE on behalf of such Seller) shall provide the Purchaser (or
with respect to any Companion Loan that is deposited into an Other
Securitization, the depositor in such Other Securitization) and the Paying
Agent with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure which the Purchaser is required to provide with respect to
such Seller in its capacity as a "sponsor" pursuant to Exhibit Y and
Exhibit Z of the Pooling and Servicing Agreement within the time periods
set forth in the Pooling and Servicing Agreement.
(b) The Purchaser represents and warrants to the Sellers as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and
in good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good
standing in all jurisdictions in which ownership or lease of its property
or the conduct of its business requires such qualification, except where
the failure to be so qualified would not have a material adverse effect on
the Purchaser, and the Purchaser is conducting its business so as to
comply in all material respects with the applicable statutes, ordinances,
rules and regulations of each jurisdiction in which it is conducting
business;
(iii) it has the power and authority to own its property and
to carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument to which the Purchaser is a party or by which
it is bound, or (B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the Purchaser's property pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(v) this Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable against it in accordance with its
terms (except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to
which the Purchaser is a party or of which any property of the Purchaser
is the subject which, if determined adversely to the Purchaser, might
interfere with or adversely affect the consummation of the transactions
contemplated herein and in the Pooling and Servicing Agreement; to the
best of the Purchaser's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker,
agent or other person, other than the Sellers, the Dealers and their
respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or
filings of or with any court or governmental agency or body, if any,
required for the execution, delivery and performance of this Agreement by
the Purchaser have been obtained or made; and
(x) it has not intentionally violated any provisions of the
United States Bank Secrecy Act, the United States Money Laundering Control
Act of 1986 or the United States International Money Laundering Abatement
and Anti-Terrorism Financing Act of 2001.
(c) Natixis RE further makes the representations and warranties as
to the Natixis RE Mortgage Loans and the Natixis CMF Mortgage Loans set forth in
Exhibit B as of the Closing Date (or as of such other date specifically provided
in the particular representation or warranty), which representations and
warranties are subject to the exceptions thereto set forth in Exhibit C. Neither
the delivery by the Sellers of the Mortgage Files, Servicing Files, or any other
documents required to be delivered under Section 2.01 of the Pooling and
Servicing Agreement, nor the review thereof or any other due diligence by the
Trustee, Master Servicer, Special Servicer, a Certificate Owner or any other
Person shall relieve the Seller of any liability or obligation with respect to
any representation or warranty or otherwise under this Agreement or constitute
notice to any Person of a Breach or Defect (it being understood that only
Natixis RE shall be liable with respect to any representation or warranty set
forth on Exhibit B with respect to the Mortgage Loans (including the Natixis CMF
Mortgage Loans)).
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Sellers and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of a Mortgage
Loan, the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, Natixis RE shall,
not later than 90 days from the earlier of the applicable Seller's receipt of
the notice or, in the case of a Defect or Breach relating to a Mortgage Loan not
being a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code, but without regard to the rule of Treasury Regulations Section
1.860G-2(f)(2) that causes a defective mortgage loan to be treated as a
qualified mortgage, the applicable Seller's discovery of such Breach or Defect
(the "Initial Resolution Period"), (i) cure such Defect or Breach, as the case
may be, in all material respects, (ii) repurchase the affected Mortgage Loan at
the applicable Repurchase Price (as defined below) or (iii) substitute a
Qualified Substitute Mortgage Loan (as defined below) for such affected Mortgage
Loan (provided that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the Master Servicer for deposit
into the Certificate Account, any Substitution Shortfall Amount (as defined
below) in connection therewith; provided, however, that except with respect to a
Defect resulting solely from the failure by a Seller to deliver to the Trustee
or custodian the actual policy of lender's title insurance required pursuant to
clause (ix) of the definition of Mortgage File by a date not later than 18
months following the Closing Date, if such Breach or Defect is capable of being
cured but is not cured within the Initial Resolution Period, and Natixis RE has
commenced and is diligently proceeding with the cure of such Breach or Defect
within the Initial Resolution Period, Natixis RE shall have an additional 90
days commencing immediately upon the expiration of the Initial Resolution Period
(the "Extended Resolution Period") to complete such cure (or, failing such cure,
to repurchase the related Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan as described above); and provided, further, that with respect to
the Extended Resolution Period Natixis RE shall have delivered an officer's
certificate to the Trustee setting forth the reason such Breach or Defect is not
capable of being cured within the Initial Resolution Period and what actions
Natixis RE is pursuing in connection with the cure thereof and stating that
Natixis RE anticipates that such Breach or Defect will be cured within the
Extended Resolution Period. Notwithstanding the foregoing, any Defect or Breach
which causes any Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code, without regard to the rule of
Treasury Regulations Section 1.860G-2(f)(2) which causes a defective mortgage
loan to be treated as a qualified mortgage) shall be deemed to materially and
adversely affect the interests of the holders of the Certificates therein, and
such Mortgage Loan shall be repurchased or a Qualified Substitute Mortgage Loan
substituted in lieu thereof without regard to the extended cure period described
in the preceding sentence. If the affected Mortgage Loan is to be repurchased,
Natixis RE shall remit the Repurchase Price (defined below) in immediately
available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then
Natixis RE shall not be required to repurchase such Mortgage Loan and the sole
remedy with respect to any Breach of such representation shall be to cure such
Breach within the applicable cure period (as the same may be extended) by
reimbursing the Trust Fund (by wire transfer of immediately available funds) the
reasonable amount of any such costs and expenses incurred by the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund that are the basis
of such Breach and have not been reimbursed by the related Mortgagor; provided,
however, that in the event any such costs and expenses exceed $10,000, Natixis
RE shall have the option to either repurchase or substitute for the related
Mortgage Loan as provided above or pay such costs and expenses. Except as
provided in the proviso to the immediately preceding sentence, Natixis RE shall
remit the amount of such costs and expenses and upon its making such remittance,
Natixis RE shall be deemed to have cured such Breach in all respects. To the
extent any fees or expenses that are the subject of a cure by Natixis RE are
subsequently obtained from the related Mortgagor, the portion of the cure
payment equal to such fees or expenses obtained from the Mortgagor shall be
returned to Natixis RE pursuant to Section 2.03(f) of the Pooling and Servicing
Agreement. Notwithstanding the foregoing, the sole remedy with respect to any
breach of the representation set forth in the second to last sentence of clause
(32) of Exhibit B hereto shall be payment by Natixis RE of such costs and
expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, that no Defect (except
a Defect previously described in clauses (a) through (f) above) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the related Mortgaged Property or the interests of the Trustee or
Certificateholders unless the document with respect to which the Defect exists
is required in connection with an imminent enforcement of the Mortgagee's rights
or remedies under the related Mortgage Loan, defending any claim asserted by any
borrower or third party with respect to the Mortgage Loan, establishing the
validity or priority of any lien on any collateral securing the Mortgage Loan or
for any immediate significant servicing obligation. Notwithstanding the
foregoing, the delivery of executed escrow instructions or a commitment to issue
a lender's title insurance policy, as provided in clause (ix) of the definition
of "Mortgage File" in the Pooling and Servicing Agreement, in lieu of the
delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf within 18 months
from the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and Natixis RE will be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria and satisfy all other criteria for substitution and
repurchase of Mortgage Loans set forth herein. In the event that the remaining
Crossed Loans satisfy the aforementioned criteria, Natixis RE may elect either
to repurchase or substitute for only the affected Crossed Loan as to which the
related Breach or Defect exists or to repurchase or substitute for all of the
Crossed Loans in the related Crossed Group. Natixis RE shall be responsible for
the cost of any Appraisal required to be obtained to determine if the Crossed
Loan Repurchase Criteria have been satisfied, so long as the scope and cost of
such Appraisal has been approved by Natixis RE (such approval not to be
unreasonably withheld).
To the extent that Natixis RE is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
Natixis RE nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then Natixis RE and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, Natixis RE shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred by the Purchaser in connection with such modification or
accommodation (including but not limited to recoverable attorney fees) shall be
paid by Natixis RE.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse to the Trust, as shall be necessary to vest in Natixis RE the
legal and beneficial ownership of each repurchased Mortgage Loan or replaced
Mortgage Loan, as applicable, (ii) the Purchaser shall deliver, or cause the
delivery, to Natixis RE of all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by the Trustee, or on the Trustee's
behalf, and (iii) the Purchaser shall release, or cause to be released, to
Natixis RE any escrow payments and reserve funds held by the Trustee, or on the
Trustee's behalf, in respect of such repurchased or replaced Mortgage Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any breach of a representation or warranty contained in this Section 6. Natixis
RE's obligation to cure any Breach or Defect (subject to the last sentence of
the second paragraph of Section (6)(e)) or repurchase or substitute any affected
Mortgage Loan pursuant to Section 6(e) shall constitute the sole remedy
available to the Purchaser in connection with a Breach or Defect. It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes; provided, however, that no limitation of remedy is
implied with respect to Natixis RE's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of each Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of each
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents with respect to each Seller:
(i) (A) in the case of Natixis RE, copies of such Seller's
certificate of incorporation and by-laws and (B) in the case of Natixis
CMF, copies of such Seller's certificate of formation and limited
liability company agreement, certified as of a recent date by the
Secretary or Assistant Secretary of such Seller;
(ii) a copy of a certificate of good standing of such Seller
issued by (A) in the case of Natixis RE, the Secretary of the State of New
York and (B) in the case of Natixis CMF, the Secretary of State of the
State of Delaware dated not earlier than sixty days prior to the Closing
Date;
(iii) an opinion of counsel of such Seller, in form and
substance satisfactory to the Purchaser and its counsel, substantially to
the effect that:
(A) (A) in the case of Natixis RE, such Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of New York and (B) in the case of
Natixis CMF, such Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Delaware;
(B) such Seller has the corporate power to conduct its
business as now conducted and to incur and perform its obligations
under this Agreement and, in the case of Natixis RE, the
Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
such Seller to authorize the execution, delivery and performance of
this Agreement and, in the case of Natixis RE, the Indemnification
Agreement by such Seller and this Agreement is a legal, valid and
binding agreement of such Seller enforceable against such Seller,
whether such enforcement is sought in a procedure at law or in
equity, except to the extent such enforcement may be limited by
bankruptcy or other similar creditors' laws or principles of equity
and public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the
enforceability of the provisions of the Agreement which purport to
provide indemnification with respect to securities law violations;
(D) such Seller's execution and delivery of, and such Seller's
performance of its obligations under, each of this Agreement and, in
the case of Natixis RE, the Indemnification Agreement do not and
will not conflict with the Seller's organizational documents or
conflict with or result in the breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement
or instrument to which such Seller is a party or by which such
Seller is bound, or to which any of the property or assets of such
Seller is subject or violate any provisions of law or conflict with
or result in the breach of any order of any court or any
governmental body binding on such Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against such Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or, in the case of Natixis RE, the
Indemnification Agreement or (ii) would, if decided adversely to the
Sellers, either individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of such
Seller to perform its obligations under this Agreement or, in the
case of Natixis RE, the Indemnification Agreement; and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with the State of New York, in
the case of Natixis RE or the State of Delaware, in the case of
Natixis CMF or any federal court or governmental agency or body is
required for the consummation by such Seller of the transactions
contemplated by this Agreement and, in the case of Natixis RE, the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of such Seller to the effect that
nothing has come to such counsel's attention that would lead such counsel
to believe that the Prospectus Supplement as of the date thereof or as of
the Closing Date contains, with respect to such Seller or the related
Mortgage Loans, any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein relating
to such Seller or the related Mortgage Loans, in the light of the
circumstances under which they were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) Natixis RE shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) Each Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place
and time as the parties shall agree. The parties hereto agree that time is of
the essence with respect to this Agreement.
SECTION 9. Expenses. The Sellers will pay their pro rata share (the
Sellers' pro rata share to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including, but not limited to: (i) the costs and expenses of the
Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs
and expenses of reproducing and delivering the Pooling and Servicing Agreement
and this Agreement and printing (or otherwise reproducing,) and delivering the
Certificates; (iii) the reasonable and documented fees, costs and expenses of
the Trustee and its counsel incurred in connection with the Trustee entering
into the Pooling and Servicing Agreement; (iv) the fees and disbursements of a
firm of certified public accountants selected by the Purchaser and the Sellers
with respect to numerical information in respect of the Mortgage Loans and the
Certificates included in the Prospectus, any Free Writing Prospectus (as defined
in the Indemnification Agreement), the Memoranda (as defined in the
Indemnification Agreement) and any related 8-K Information (as defined in the
Underwriting Agreement), or items similar to the 8-K Information, including the
cost of obtaining any "comfort letters" with respect to such items; (v) the
costs and expenses in connection with the qualification or exemption of the
Certificates under state securities or blue sky laws, including filing fees and
reasonable fees and disbursements of counsel in connection therewith; (vi) the
costs and expenses in connection with any determination of the eligibility of
the Certificates for investment by institutional investors in any jurisdiction
and the preparation of any legal investment survey, including reasonable fees
and disbursements of counsel in connection therewith; (vii) the costs and
expenses in connection with printing (or otherwise reproducing) and delivering
the Registration Statement, the Prospectus, the Memoranda and any Free Writing
Prospectus, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement, the
Prospectus, the Memoranda, any Free Writing Prospectus and this Agreement as the
Underwriters may reasonably request; (viii) the fees of the rating agency or
agencies requested to rate the Certificates and (ix) the reasonable fees and
expenses of Xxxxxxx Xxxxxxxx & Wood, LLP, counsel to the Underwriters and
Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third-Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. Each Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement and that the rights so assigned may be further assigned to, and shall
inure to the benefit of, any successor trustee under the Pooling and Servicing
Agreement. Each Seller hereby acknowledges its obligations, including that of
expense reimbursement, pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling
and Servicing Agreement. Except as set forth hereinabove and in Sections 2.01,
2.02 and 2.03 of the Pooling and Servicing Agreement, the representations and
warranties of each Seller made hereunder and the remedies provided hereunder
with respect to Breaches or Defects may not be further assigned by the
Purchaser, the Trustee or any successor trustee. No owner of a Certificate
issued pursuant to the Pooling and Servicing Agreement shall be deemed a
successor or permitted assign because of such ownership. This Agreement shall
bind and inure to the benefit of, and be enforceable by, the Seller, the
Purchaser and their permitted successors and permitted assigns. The warranties
and representations and the agreements made by each Seller herein shall survive
delivery of the Mortgage Loans to the Trustee until the termination of the
Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxxxxxxx, Vice President, telecopy number (000) 000-0000, (ii) in
the case of the Sellers, with respect to Natixis RE Mortgage Loans and Natixis
CMF Mortgage Loans, x/x Xxxxxxx Xxxx Xxxxxx Xxxxxxx, Xxx., 0 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, fax number: (212)
000-0000 and (iii) in the case of any of the preceding parties, such other
address as may hereafter be furnished to the other party in writing by such
parties.
SECTION 15. Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and each Seller; provided, however, that unless such amendment
is to cure an ambiguity, mistake or inconsistency in this Agreement, no
amendment shall be permitted unless each Rating Agency has delivered a written
confirmation that such amendment will not result in a downgrade, withdrawal or
qualification of the then current ratings of the Certificates and the cost of
obtaining any Rating Agency confirmation shall be borne by the party requesting
such amendment. This Agreement shall not be deemed to be amended orally or by
virtue of any continuing custom or practice. No amendment to the Pooling and
Servicing Agreement which relates to defined terms contained therein or any
obligations of a Seller whatsoever shall be effective against such Seller unless
such Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. No notice to or demand on any party in
any case shall entitle such party to any other or further notice or demand in
similar or other circumstances, or constitute a waiver of the right of either
party to any other or further action in any circumstances without notice or
demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and either Seller and neither the
Purchaser nor any Seller shall take any action which could reasonably lead a
third party to assume that it has the authority to bind the other party or make
commitments on such party's behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
NATIXIS REAL ESTATE CAPITAL INC., as
Seller
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Managing Director
NATIXIS COMMERCIAL MORTGAGE FUNDING,
LLC, as Seller
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
EXHIBIT A-1
MORTGAGE LOAN SCHEDULE
JPMCC 2007-C1
Mortgage Loan Schedule (NATIXIS)
Loan # Originator/Loan Seller
------ -----------------------------------
21 Natixis Real Estate Capital
29 Natixis Real Estate Capital
46 Natixis Real Estate Capital
Loan # Mortgagor Name
------ ---------------------------------------------------------------------------------------------------------------------------
21 Airport Management Inc
29 SAT Airport, Inc.
46 Temple Lodging, LLC
Loan # Property Address City State Zip Code County
------- --------------------------- -------------- ------- -------- ------------
21 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxx Arundel
29 0000 Xxxxx Xxxxxxxxxxx Xxxx Xxx Xxxxxxx XX 00000 Bexar
46 00000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000 Hillsborough
Loan # Property Name Size Measure Interest Rate (%)
------- --------------------------------------------- ------ ----------- -----------------
21 Baywood Staybridge Suites BWI 104 Rooms 6.73100
29 Baywood Xxxxxxx Xxx & Xxxxxx Xxx Xxxxxxx 000 Rooms 6.72400
46 Baywood Xxxxxxxxx Xxx & Xxxxxx Xxxxxx Xxxxxxx 00 Rooms 6.72400
Loan # Net Mortgage Interest Rate Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date
------- -------------------------- ---------------- -------------- ---- --------- -----------------
21 6.70950 14,000,000 13,981,969 120 119 11/05/17
29 6.70250 10,000,000 9,987,106 120 119 11/05/17
46 6.70250 5,600,000 5,592,780 120 119 11/05/17
Loan # Amort. Term Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N)
------- ----------- ----------- -------------------- ------------------ ------------ ---------
21 300 299 96,560 0.02000 Actual/360 No
29 300 299 68,927 0.02000 Actual/360 No
46 300 299 38,599 0.02000 Actual/360 No
Loan # ARD Step Up (%) Title Type Crossed Loan Guarantor
------- --------------- ---------- ------------ ------------------------------------------------
21 Fee Xxxx X. Xxxxx
29 Fee Xxxx X. Xxxxx
46 Fee Xxxxxx Xxxx and Xxxx X. Xxxxx
UPFRONT ESCROW
---------------------------------------------------------------------
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve Upfront Envir. Reserve
------- ---------------- --------------------- -------------------- ----------------------
21 No 0.00 0.00 0.00
29 No 0.00 6,250.00 0.00
46 No 0.00 0.00 0.00
UPFRONT ESCROW
---------------------------------------------------------------------------------------------
Loan # Upfront TI/LC Reserve Upfront RE Tax Reserve Upfront Ins. Reserve Upfront Other Reserve
------- --------------------- ---------------------- -------------------- ---------------------
21 0.00 40,000.00 3,920.17 0.00
29 0.00 0.00 36,000.00 0.00
46 0.00 5,592.35 44,994.81 0.00
MONTHLY ESCROW
-----------------------------------------------------------------------------------------------
Loan # Monthly Capex Reserve Monthly Envir. Reserve Monthly TI/LC Reserve Monthly RE Tax Reserve
------- --------------------- ---------------------- --------------------- ----------------------
21 8862.00 0.00 0.00 8000.00
29 7886.00 0.00 0.00 4594.91
46 4474.00 0.00 0.00 5592.35
MONTHLY ESCROW
-------------------------------------------
Loan # Monthly Ins. Reserve Monthly Other Reserve Grace Period Lockbox In-place Property Type
------- -------------------- --------------------- ------------ ---------------- -------------
21 2460.08 0.00 0 No Hotel
29 3000.00 0.00 0 No Hotel
46 4661.18 0.00 0 No Hotel
Loan # Defeasance Permitted Interest Accrual Period Loan Group Final Maturity Date
------- -------------------- ----------------------- ---------- -------------------
21 Yes Actual/360 1
29 Yes Actual/360 1
46 Yes Actual/360 1
Loan # Remaining Amortization Term for Balloon Loans
------- ---------------------------------------------
21 300
29 300
46 300
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE
JPMCC 2007-C1
Mortgage Loan Schedule (NATIXIS)
Loan # Originator/Loan Seller
------ -----------------------------------
5 Natixis Commercial Mortgage Funding
23 Natixis Commercial Mortgage Funding
23.01 Natixis Commercial Mortgage Funding
23.02 Natixis Commercial Mortgage Funding
23.03 Natixis Commercial Mortgage Funding
23.04 Natixis Commercial Mortgage Funding
23.05 Natixis Commercial Mortgage Funding
23.06 Natixis Commercial Mortgage Funding
50 Natixis Commercial Mortgage Funding
50.01 Natixis Commercial Mortgage Funding
50.02 Natixis Commercial Mortgage Funding
50.03 Natixis Commercial Mortgage Funding
50.04 Natixis Commercial Mortgage Funding
50.05 Natixis Commercial Mortgage Funding
Loan # Mortgagor Name
------ ---------------------------------------------------------------------------------------------------------------------------
5 El Paso Outlet Center LLC
23 ARC RACADOH001, LLC, ARC RACAROH001, LLC, ARC RAELPOH001, LLC, ARC RALISOH001, LLC, ARC RAPITPA001, LP, ARC RACARPA001, LP
23.01
23.02
23.03
23.04
23.05
23.06
50 The Foundry Building, LLC, Exchange Building, LLC, Cambridge Building, LLC, Xxxxxxx Building, LLC, Winchester Building, LLC
50.01
50.02
50.03
50.04
50.05
Loan # Property Address City State Zip Code County
------- --------------------------- -------------- ------- -------- ------------
5 0000 Xxxxx Xxxxxx Xxxxxxxxx Xx Xxxx XX 00000 El Paso
23 Various Various Various Various Various
23.01 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Allegheny
23.02 000 Xxxx Xxxx Xxxxxxxx XX 00000 Cumberland
23.03 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxxxx
23.04 000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 Columbiana
23.05 000 Xxxxxxx Xxxxxx Xxxxx XX 00000 Xxxxxxxx
23.06 0000 Xxxxx Xxxxx 00 Xxxxxx XX 00000 Columbiana
50 Xxxxxxx Xxxxxxx XX 00000 Cabarrus
50.01 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Cabarrus
50.02 000 Xxxx Xxxx Xxx Xxxxxxx XX 00000 Cabarrus
50.03 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Cabarrus
50.04 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Cabarrus
50.05 0000-0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Cabarrus
Loan # Property Name Size Measure Interest Rate (%)
------- --------------------------------------------- ------ ----------- -----------------
5 The Shoppes at Xx Xxxx 000000 Square Feet 7.06000
23 ARC Rite Aid - I 75072 Square Feet 6.87500
23.01 ARC Rite Aid - Xxxxxxxxxx, XX 00000 Square Feet 6.87500
23.02 ARC Rite Aid - Xxxxxxxx, XX 00000 Square Feet 6.87500
23.03 ARC Rite Aid - Xxxxxxxxxx, XX 00000 Square Feet 6.87500
23.04 ARC Rite Aid - E Xxxxxxxxx, XX 00000 Square Feet 6.87500
23.05 ARC Rite Aid - Xxxxx, XX 00000 Square Feet 6.87500
23.06 ARC Rite Aid - Xxxxxx, XX 00000 Square Feet 6.87500
50 Afton Village 26264 Square Feet 6.89000
50.01 Exchange 11316 Square Feet 6.89000
50.02 Xxxxxxx 4995 Square Feet 6.89000
50.03 Cambridge 5000 Square Feet 6.89000
50.04 Winchester 2453 Square Feet 6.89000
50.05 Foundry 2500 Square Feet 6.89000
Loan # Net Mortgage Interest Rate Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date
------- -------------------------- ---------------- -------------- ---- --------- -----------------
5 7.03850 70,000,000 70,000,000 120 120 12/05/17
23 6.85350 12,808,265 12,808,265 120 117 09/07/17
23.01 4,110,527 4,110,527 120 117 09/07/17
23.02 3,007,738 3,007,738 120 117 09/07/17
23.03 1,730,000 1,730,000 120 117 09/07/17
23.04 1,630,000 1,630,000 120 117 09/07/17
23.05 1,240,000 1,240,000 120 117 09/07/17
23.06 1,090,000 1,090,000 120 117 09/07/17
50 6.81850 5,000,000 5,000,000 120 120 12/05/17
50.01 2,230,000 2,230,000 120 120 12/05/17
50.02 975,000 975,000 120 120 12/05/17
50.03 930,000 930,000 120 120 12/05/17
50.04 465,000 465,000 120 120 12/05/17
50.05 400,000 400,000 120 120 12/05/17
Loan # Amort. Term Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N)
------- ----------- ----------- -------------------- ------------------ ------------ ---------
5 360 360 468,536 0.02000 Actual/360 No
23 360 360 84,141 0.02000 Actual/360 No
23.01 360 360 Actual/360 No
23.02 360 360 Actual/360 No
23.03 360 360 Actual/360 No
23.04 360 360 Actual/360 No
23.05 360 360 Actual/360 No
23.06 360 360 Actual/360 No
50 360 360 32,897 0.07000 Actual/360 No
50.01 360 360 Actual/360 No
50.02 360 360 Actual/360 No
50.03 360 360 Actual/360 No
50.04 360 360 Actual/360 No
50.05 360 360 Actual/360 No
Loan # ARD Step Up (%) Title Type Crossed Loan Guarantor
------- --------------- ---------- ------------ ------------------------------------------------
5 Fee Xxxxx Xxxxxxx and Horizon Group Properties, Inc.
23 Fee Xxxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxxxx
23.01 Fee
23.02 Fee
23.03 Fee
23.04 Fee
23.05 Fee
23.06 Fee
50 Fee Xxxxx Xxxxxxxx
50.01 Fee
50.02 Fee
50.03 Fee
50.04 Fee
50.05 Fee
UPFRONT ESCROW
---------------------------------------------------------------------
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve Upfront Envir. Reserve
------- ---------------- --------------------- -------------------- ----------------------
5 No 0.00 0.00 0.00
23 No 0.00 11,700.00 0.00
23.01
23.02
23.03
23.04
23.05
23.06
50 No 0.00 0.00 0.00
50.01
50.02
50.03
50.04
50.05
UPFRONT ESCROW
---------------------------------------------------------------------------------------------
Loan # Upfront TI/LC Reserve Upfront RE Tax Reserve Upfront Ins. Reserve Upfront Other Reserve
------- --------------------- ---------------------- -------------------- ---------------------
5 7,931,129.31 133,040.00 95,270.80 8,142,434.44
23 0.00 0.00 0.00 0.00
23.01
23.02
23.03
23.04
23.05
23.06
50 150,000.00 13,219.00 3,100.00 83,376.19
50.01
50.02
50.03
50.04
50.05
MONTHLY ESCROW
-----------------------------------------------------------------------------------------------
Loan # Monthly Capex Reserve Monthly Envir. Reserve Monthly TI/LC Reserve Monthly RE Tax Reserve
------- --------------------- ---------------------- --------------------- ----------------------
5 2210.00 0.00 0.00 133040.00
23 1067.23 0.00 0.00 0.00
23.01
23.02
23.03
23.04
23.05
23.06
50 0.00 0.00 2833.00 3304.67
50.01
50.02
50.03
50.04
50.05
MONTHLY ESCROW
-------------------------------------------
Loan # Monthly Ins. Reserve Monthly Other Reserve Grace Period Lockbox In-place Property Type
------- -------------------- --------------------- ------------ ---------------- -------------
5 11908.80 0.00 0 Yes Retail
23 0.00 0.00 0 Yes Retail
23.01 0 Retail
23.02 0 Retail
23.03 0 Retail
23.04 0 Retail
23.05 0 Retail
23.06 0 Retail
50 1033.33 0.00 0 No Retail
50.01 0 Retail
50.02 0 Retail
50.03 0 Retail
50.04 0 Retail
50.05 0 Retail
Loan # Defeasance Permitted Interest Accrual Period Loan Group Final Maturity Date
------- -------------------- ----------------------- ---------- -------------------
5 Yes Actual/360 1
23 Yes Actual/360 1
23.01 Actual/360 1
23.02 Actual/360 1
23.03 Actual/360 1
23.04 Actual/360 1
23.05 Actual/360 1
23.06 Actual/360 1
50 No Actual/360 1
50.01 Actual/360 1
50.02 Actual/360 1
50.03 Actual/360 1
50.04 Actual/360 1
50.05 Actual/360 1
Loan # Remaining Amortization Term for Balloon Loans
------- ---------------------------------------------
5 360
23 360
23.01 360
23.02 360
23.03 360
23.04 360
23.05 360
23.06 360
50 360
50.01 360
50.02 360
50.03 360
50.04 360
50.05 360
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF THE SELLER
(1) No Mortgage Loan is 30 days or more delinquent in payment of principal
and interest (without giving effect to any applicable grace period) as of the
Cut-off Date and no Mortgage Loan has been 30 days or more (without giving
effect to any applicable grace period) past due.
(2) Except with respect to the ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on the
Mortgage Loan Schedule is true and correct in all material respects as of the
Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the Purchaser,
the Seller had good and marketable title to and was the sole owner and holder
of, each Mortgage Loan, free and clear of any pledge, lien, encumbrance or
security interest (subject to certain agreements regarding servicing as provided
in the Pooling and Servicing Agreement, subservicing agreements permitted
thereunder and that certain Servicing Rights Purchase Agreement, dated as of
[the date hereof] between Master Servicer and Seller) and such assignment
validly and effectively transfers and conveys all legal and beneficial ownership
of the Mortgage Loans to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase
Agreement, dated as of [the date hereof] between Master Servicer and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public documents
or certified copies of the incorporation or partnership or other entity
documents, as applicable, delivered in connection with the origination of such
Mortgage Loan, the related Mortgagor is an entity organized under the laws of a
state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no knowledge, that the related Mortgagor is a debtor in any
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances,
and to the extent that the Mortgaged Property is a hotel, such personal property
includes all personal property reasonably required to operate the related
Mortgaged Property as it is currently being operated by the Mortgagor. There
exists with respect to such Mortgaged Property an assignment of leases and rents
provision, either as part of the related Mortgage or as a separate document or
instrument, which establishes and creates a first priority security interest in
and to leases and rents arising in respect of the related Mortgaged Property,
subject only to Permitted Encumbrances. Except for the holder of the Subordinate
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date there were, and, to the
Seller's knowledge as of the Closing Date, there are no mechanics' or other
similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below), except for Permitted Encumbrances. No Mortgaged Property secures
any mortgage loan not represented on the Mortgage Loan Schedule; no Mortgage
Loan is cross-collateralized or cross-defaulted with any other mortgage loan
other than one or more Mortgage Loans as shown on the Mortgage Loan Schedule; no
Mortgage Loan is secured by property which secures another mortgage loan other
than a Mortgage Loan as shown on the Mortgage Loan Schedule. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues 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.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association (ALTA)
lender's title insurance policy or a comparable form of lender's title insurance
policy (or escrow instructions binding on the Title Insurer (as defined below)
and irrevocably obligating the Title Insurer to issue such title insurance
policy or a title policy commitment or pro-forma "marked up" at the closing of
the related Mortgage Loan and countersigned by the Title Insurer or its
authorized agent) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which was issued by a nationally recognized title insurance
company (the "Title Insurer") qualified to do business in the jurisdiction where
the applicable Mortgaged Property is located (unless such jurisdiction is the
State of Iowa), covering the portion of each Mortgaged Property comprised of
real estate and insuring that the related Mortgage is a valid first lien in the
original principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such Mortgaged
Property comprised of real estate, subject only to Permitted Encumbrances. Such
Title Insurance Policy was issued in connection with the origination of the
related Mortgage Loan. No claims have been made under such Title Insurance
Policy. Such Title Insurance Policy is in full force and effect and all premiums
thereon have been paid and will provide that the insured includes the owner of
the Mortgage Loan and its successors and/or assigns. No holder of the related
Mortgage has done, by act or omission, anything that would, and the Seller has
no actual knowledge of any other circumstance that would, impair the coverage
under such Title Insurance Policy. Such Title Insurance Policy contains no
exception regarding the encroachment upon any material easements of any material
permanent improvements located at the related Mortgaged Property for which the
grantee of such easement has the ability to force removal of such improvement,
or such Title Insurance Policy affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available) against losses caused by forced removal of any material
permanent improvements on the related Mortgaged Property that encroach upon any
material easements.
(9) The related Assignment of Mortgage and the related assignment of the
Assignment of Leases executed in connection with each Mortgage, if any, have
been recorded in the applicable jurisdiction (or, if not recorded, have been
submitted for recording or are in recordable form (but for the insertion of the
name and address of the assignee and any related recording information which is
not yet available to the Seller)) and constitute the legal, valid and binding
assignment of such Mortgage and the related Assignment of Leases from the Seller
to the Purchaser. The endorsement of the related Mortgage Note by the Seller
constitutes the legal, valid, binding and enforceable (except as such
enforcement may be limited by anti-deficiency laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law)) assignment of such Mortgage Note, and together
with such Assignment of Mortgage and the related assignment of Assignment of
Leases, legally and validly conveys all right, title and interest in such
Mortgage Loan and Mortgage Loan documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide that
such Mortgage Loan is non-recourse to the related parties thereto except that
the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or material misrepresentation, (ii) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (iii) any act of actual waste,
and (iv) any breach of the environmental covenants contained in the related
Mortgage Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including realization by judicial or, if applicable, non-judicial
foreclosure, and there is no exemption available to the related Mortgagor
which would interfere with such right of foreclosure except any statutory
right of redemption or as may be limited by anti-deficiency laws or by
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(c) Each of the related Mortgage Notes and Mortgages are the legal, valid
and binding obligations of the related Mortgagor named on the Mortgage
Loan Schedule and each of the other related Mortgage Loan documents is the
legal, valid and binding obligation of the parties thereto (subject to any
non-recourse provisions therein), enforceable in accordance with its
terms, except as such enforcement may be limited by anti-deficiency or one
form of action laws or bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions of
such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but the inclusion of such
provisions does not render any of the Mortgage Loan documents invalid as a
whole, and such Mortgage Loan documents taken as a whole are enforceable
to the extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as
specifically set forth in the related Mortgage File and no such
alterations, impairments, modifications, or waivers have been completed or
consented to since November 5, 2007.
(e) With respect to each Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, currently so serves
and is named in the deed of trust or has been substituted in accordance
with applicable law, and no fees or expenses are or will become payable to
the trustee under the deed of trust, except in connection with a trustee's
sale after default by the Mortgagor other than de minimis fees paid in
connection with the release of the related Mortgaged Property or related
security for such Mortgage Loan following payment of such Mortgage Loan in
full.
(11) No Mortgage Loan has been satisfied, canceled, subordinated, released
or rescinded, in whole or in part, and the related Mortgagor has not been
released, in whole or in part, from its obligations under any related Mortgage
Loan document.
(12) Except with respect to the enforceability of any provisions requiring
the payment of default interest, late fees, additional interest, prepayment
premiums or yield maintenance charges, neither the Mortgage Loan nor any of the
related Mortgage Loan documents is subject to any right of rescission, set-off,
abatement, diminution, valid counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of any such Mortgage Loan
documents, or the exercise (in compliance with procedures permitted under
applicable law) of any right thereunder, render any Mortgage Loan documents
subject to any right of rescission, set-off, abatement, diminution, valid
counterclaim or defense, including the defense of usury (subject to
anti-deficiency or one form of action laws and to bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditor's rights generally and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law)), and no such right of rescission, set-off,
abatement, diminution, valid counterclaim or defense has been asserted with
respect thereto. None of the Mortgage Loan documents provides for a release of a
portion of the Mortgaged Property from the lien of the Mortgage except upon
payment or defeasance in full of all obligations under the Mortgage, provided
that, notwithstanding the foregoing, certain of the Mortgage Loans may allow
partial release (a) upon payment or defeasance of an Allocated Loan Amount which
may be formula based, but in no event less than 125% of the Allocated Loan
Amount, or (b) in the event the portion of the Mortgaged Property being released
was not given any material value in connection with the underwriting or
appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, after giving
effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, after giving effect to any applicable
notice and/or grace period; no such material default or breach has been waived
by the Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure or power of sale
proceeding has been initiated in respect of the related Mortgage. The Seller has
not waived any material claims against the related Mortgagor under any
non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the Mortgage
Loan Schedule has been fully disbursed as of the Closing Date specified therein
(except for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not impaired by any improvements which have not been completed. The
Seller has not, nor, to the Seller's knowledge, have any of its agents or
predecessors in interest with respect to the Mortgage Loan, in respect of
payments due on the related Mortgage Note or Mortgage, directly or indirectly,
advanced funds or induced, solicited or knowingly received any advance of funds
by a party other than the Mortgagor other than (a) interest accruing on such
Mortgage Loan from the date of such disbursement of such Mortgage Loan to the
date which preceded by thirty (30) days the first payment date under the related
Mortgage Note and (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.
(b) No Mortgage Loan has capitalized interest included in its principal
balance, or provides for any shared appreciation rights or other equity
participation therein and no contingent or additional interest contingent
on cash flow or negative amortization (other than with respect to the
deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD
Loan starts to amortize no later than the Due Date of the calendar month
immediately after the calendar month in which such ARD Loan closed and
substantially fully amortizes over its stated term, which term is at least
60 months after the related Anticipated Repayment Date. Each ARD Loan has
an Anticipated Repayment Date not less than seven years following the
origination of such Mortgage Loan. If the related Mortgagor elects not to
prepay its ARD Loan in full on or prior to the Anticipated Repayment Date
pursuant to the existing terms of the Mortgage Loan or a unilateral option
(as defined in Treasury Regulations under Section 1001 of the Code) in the
Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the
Mortgage Loan's interest rate will step up to an interest rate per annum
as specified in the related Mortgage Loan documents; provided, however,
that payment of such Excess Interest shall be deferred until the principal
of such ARD Loan has been paid in full; (ii) all or a substantial portion
of the Excess Cash Flow (which is net of certain costs associated with
owning, managing and operating the related Mortgaged Property) collected
after the Anticipated Repayment Date shall be applied towards the
prepayment of such ARD Loan and once the principal balance of an ARD Loan
has been reduced to zero all Excess Cash Flow will be applied to the
payment of accrued Excess Interest; and (iii) if the property manager for
the related Mortgaged Property can be removed by or at the direction of
the mortgagee on the basis of a debt service coverage test, the subject
debt service coverage ratio shall be calculated without taking account of
any increase in the related Mortgage Interest Rate on such Mortgage Loan's
Anticipated Repayment Date. No ARD Loan provides that the property manager
for the related Mortgaged Property can be removed by or at the direction
of the mortgagee solely because of the passage of the related Anticipated
Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD
Loan with a hard lockbox requires that tenants at the related Mortgaged
Property shall (and each Mortgage Loan identified in the Mortgage Loan
Schedule as an ARD Loan with a springing lockbox requires that tenants at
the related Mortgaged Property shall, upon the occurrence of a specified
trigger event, including, but not limited to, the occurrence of the
related Anticipated Repayment Date) make rent payments into a lockbox
controlled by the holder of the Mortgage Loan and to which the holder of
the Mortgage Loan has a first perfected security interest; provided
however, with respect to each ARD Loan which is secured by a multi-family
property with a hard lockbox, or with respect to each ARD Loan which is
secured by a multi-family property with a springing lockbox, upon the
occurrence of a specified trigger event, including, but not limited to,
the occurrence of the related Anticipated Repayment Date, tenants either
pay rents to a lockbox controlled by the holder of the Mortgage Loan or
deposit rents with the property manager who will then deposit the rents
into a lockbox controlled by the holder of the Mortgage Loan.
(15) The terms of the Mortgage Loan documents evidencing such Mortgage
Loan comply in all material respects with all applicable local, state and
federal laws, regulations and the Seller has complied with all material
requirements pertaining to the origination, funding and servicing of the
Mortgage Loans, including but not limited to, usury and any and all other
material requirements of any federal, state or local law to the extent
non-compliance would have a material adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as of
the date of origination of the Mortgage Loan, based on inquiry customary in the
industry, and to the Seller's actual knowledge and subject to clause (37)
hereof, as of the Closing Date, the related Mortgaged Property is, in all
material respects, in compliance with, and is used and occupied in accordance
with, all restrictive covenants of record applicable to such Mortgaged Property
and applicable zoning laws and all inspections, licenses, permits and
certificates of occupancy required by law, ordinance or regulation to be made or
issued with regard to the Mortgaged Property have been obtained and are in full
force and effect, except to the extent (a) any material non-compliance with all
restrictive covenants of record applicable to such Mortgaged Property or
applicable zoning laws is insured by an ALTA lender's title insurance policy (or
binding commitment therefor), or the equivalent as adopted in the applicable
jurisdiction, or a law and ordinance insurance policy, or (b) the failure to
obtain or maintain such inspections, licenses, permits or certificates of
occupancy does not materially impair or materially and adversely affect the use
and/or operation of the Mortgaged Property as it was used and operated as of the
date of origination of the Mortgage Loan or the rights of a holder of the
related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title Insurance
Policy, (i) none of the material improvements that were included for the purpose
of determining the appraised value of the related Mortgaged Property at the time
of the origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such Mortgaged Property, except to the extent they
are legally nonconforming as contemplated by representation (37) below, and (ii)
no improvements on adjoining properties encroach upon such Mortgaged Property,
except in the case of either (i) or (ii) for (a) immaterial encroachments which
do not materially adversely affect the security intended to be provided by the
related Mortgage or the use, value or marketability of such Mortgaged Property
or (b) encroachments affirmatively covered by the related Title Insurance
Policy. With respect to each Mortgage Loan, the property legally described in
the survey, if any, obtained for the related Mortgaged Property for purposes of
the origination thereof is the same as the property legally described in the
Mortgage.
(19) (a) Except with respect to repairs estimated to cost less than $5,000
in the aggregate, as of the date of the applicable engineering report (which was
performed within 12 months prior to the Cut-off Date) related to the Mortgaged
Property and, to Seller's knowledge as of the Closing Date, the related
Mortgaged Property is either (i) in good repair, free and clear of any damage
that would materially adversely affect the value of such Mortgaged Property as
security for such Mortgage Loan or the use and operation of the Mortgaged
Property as it was being used or operated as of the origination date or (ii)
escrows in an amount consistent with the standard utilized by the Seller with
respect to similar loans it holds for its own account have been established,
which escrows will in all events be not less than 100% of the estimated cost of
the required repairs. Since the origination date, to the Seller's knowledge,
such Mortgaged Property has not been damaged by fire, wind or other casualty or
physical condition (including, without limitation, any soil erosion or
subsidence or geological condition), which damage has not been fully repaired or
fully insured, or for which escrows in an amount consistent with the standard
utilized by the Seller with respect to loans it holds for its own account have
not been established.
(b) As of the origination date of such Mortgage Loan and to the Seller's
actual knowledge, as of the Closing Date, there are no proceedings pending
or, to the Seller's actual knowledge, threatened, for the partial or total
condemnation of the relevant Mortgaged Property; provided, that solely for
purposes of this Representation 19(b), the Seller's actual knowledge shall
include the actual knowledge of any servicer that has serviced the
Mortgage Loan on behalf of the Seller. The "actual knowledge" of any such
Seller as it relates to the actual knowledge of any servicer shall be
deemed to be knowledge derived from the servicer by the Seller based on a
level of inquiry that is customary for sellers of conduit loans in the
commercial real estate industry.
(20) With respect to the Mortgage Loans that are identified on Exhibit A
as being secured in whole or in part by a leasehold estate (a "Ground Lease")
(except with respect to any Mortgage Loan also secured by the related fee
interest in the Mortgaged Property):
(a) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease, or other agreement received by the originator
of the Mortgage Loan from the ground lessor, provides that the interest of
the lessee thereunder may be encumbered by the related Mortgage and does
not restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns, in a manner that would materially and adversely
affect the security provided by the Mortgage; as of the date of
origination of the Mortgage Loan, there was no material change of record
in the terms of such Ground Lease with the exception of written
instruments which are part of the related Mortgage File and Seller has no
knowledge of any material change in the terms of such Ground Lease since
the recordation of the related Mortgage, with the exception of written
instruments which are part of the related Mortgage File;
(b) 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 and such Ground Lease is,
and shall remain, prior to any mortgage or other lien upon the related fee
interest (other than the Permitted Encumbrances) unless a nondisturbance
agreement is obtained from the holder of any such mortgage or lien on the
fee interest, which nondisturbance agreement is assignable to or for the
benefit of the related lessee and the related mortgagee;
(c) such Ground Lease or other agreement received by the originator of the
Mortgage Loan from the ground lessor provides that upon foreclosure of the
related Mortgage or assignment of the Mortgagor's interest in such Ground
Lease in lieu thereof, the mortgagee under such Mortgage is entitled to
become the owner of such interest upon notice to, but without the consent
of, the lessor thereunder and, in the event that such mortgagee (or any of
its successors and assigns under the Mortgage) becomes the owner of such
interest, such interest is further assignable by such mortgagee (or any of
its successors and assigns under the Mortgage) upon notice to such lessor,
but without a need to obtain the consent of such lessor;
(d) such Ground Lease is in full force and effect and no default of tenant
or ground lessor was in existence at origination, or to the Seller's
knowledge, is currently in existence under such Ground Lease, nor at
origination was, or to the Seller's knowledge, is there any condition
which, but for the passage of time or the giving of notice, would result
in a default under the terms of such Ground Lease; either such Ground
Lease or a separate agreement contains the ground lessor's covenant that
it shall not amend, modify, cancel or terminate such Ground Lease without
the prior written consent of the mortgagee under such Mortgage and any
amendment, modification, cancellation or termination of the Ground Lease
without the prior written consent of the related mortgagee, or its
successors or assigns is not binding on such mortgagee, or its successor
or assigns;
(e) such Ground Lease or other agreement requires the lessor thereunder to
give written notice of any material default by the lessee to the mortgagee
under the related Mortgage, provided that such mortgagee has provided the
lessor with notice of its lien in accordance with the provisions of such
Ground Lease; and such Ground Lease or other agreement provides that no
such notice of default and no termination of the Ground Lease in
connection with such notice of default shall be effective against such
mortgagee unless such notice of default has been given to such mortgagee
and any related Ground Lease or other agreement contains the ground
lessor's covenant that it will give to the related mortgagee, or its
successors or assigns, any notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its interest in
the related Mortgaged Property to the interest of the holder of the
Mortgage Loan or (ii) such Ground Lease or other agreement provides that
(A) the mortgagee under the related Mortgage is permitted a reasonable
opportunity to cure any default under such Ground Lease which is curable,
including reasonable time to gain possession of the interest of the lessee
under the Ground Lease, after the receipt of notice of any such default
before the lessor thereunder may terminate such Ground Lease; (B) in the
case of any such default which is not curable by such mortgagee, or in the
event of the bankruptcy or insolvency of the lessee under such Ground
Lease, such mortgagee has the right, following termination of the existing
Ground Lease or rejection thereof by a bankruptcy trustee or similar
party, to enter into a new ground lease with the lessor on substantially
the same terms as the existing Ground Lease; and (C) all rights of the
Mortgagor under such Ground Lease (insofar as it relates to the Ground
Lease) may be exercised by or on behalf of such mortgagee under the
related Mortgage upon foreclosure or assignment in lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term plus one
or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee)
which extends not less than 20 years beyond the stated maturity date of
the related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage or a financially responsible
institution acting as trustee appointed by it, or consented to by it, or
by the lessor 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 to the payment in whole or in part of the outstanding
principal balance of such Mortgage Loan together with any accrued and
unpaid interest thereon; and
(i) such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by the Seller; such Ground
Lease contains a covenant (or applicable laws provide) that the lessor
thereunder is not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any lessee in the
relevant portion of such Mortgaged Property subject to such Ground Lease
for any reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage.
(21) (a) Except for those Mortgage Loans set forth on Schedule I hereto
for which a lender's environmental insurance policy was obtained in lieu of an
Environmental Site Assessment, an Environmental Site Assessment relating to each
Mortgaged Property and prepared no earlier than 12 months prior to the Closing
Date was obtained and reviewed by the Seller in connection with the origination
of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the Seller
has no actual knowledge of, any adverse circumstances or conditions with
respect to or affecting the Mortgaged Property that would constitute or
result in a material violation of any Environmental Laws, other than with
respect to a Mortgaged Property (i) for which environmental insurance (as
set forth on Schedule II hereto) is maintained, or (ii) which would
require (x) any expenditure less than or equal to 5% of the outstanding
principal balance of the Mortgage Loan to achieve or maintain compliance
in all material respects with any Environmental Laws or (y) any
expenditure greater than 5% of the outstanding principal balance of such
Mortgage Loan to achieve or maintain compliance in all material respects
with any Environmental Laws for which, in connection with this clause (y),
adequate sums, but in no event less than 125% of the estimated cost as set
forth in the Environmental Site Assessment, were reserved in connection
with the origination of the Mortgage Loan and for which the related
Mortgagor has covenanted to perform, or (iii) as to which the related
Mortgagor or one of its affiliates is currently taking or required to take
such actions (which may include the implementation of an operations and
maintenance plan), if any, with respect to such conditions or
circumstances as have been recommended by the Environmental Site
Assessment or required by the applicable governmental authority, or (iv)
as to which another responsible party not related to the Mortgagor with
assets reasonably estimated by the Seller at the time of origination to be
sufficient to effect all necessary or required remediation identified in a
notice or other action from the applicable governmental authority is
currently taking or required to take such actions, if any, with respect to
such regulatory authority's order or directive, or (v) as to which such
conditions or circumstances identified in the Environmental Site
Assessment were investigated further and based upon such additional
investigation, an environmental consultant recommended no further
investigation or remediation, or (vi) as to which a party with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Mortgagor or
to the mortgagee to cover the costs of any required investigation,
testing, monitoring or remediation, or (vii) as to which the related
Mortgagor or other responsible party obtained a "No Further Action" letter
or other evidence reasonably acceptable to a 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 condition or circumstance, or (viii) which
would not require substantial cleanup, remedial action or other
extraordinary response under any Environmental Laws reasonably estimated
to cost in excess of 5% of the outstanding principal balance of such
Mortgage Loan;
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for
any Hazardous Materials present at such Mortgaged Property for which, to
the extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as
sufficient to pay the cost of such remediation or other action in
accordance with such Environmental Site Assessment or (B) one of the
statements set forth in clause (b) above is true, (1) such Mortgaged
Property is not being used for the treatment or disposal of Hazardous
Materials; (2) no Hazardous Materials are being used or stored or
generated for off-site disposal or otherwise present at such Mortgaged
Property other than Hazardous Materials of such types and in such
quantities as are customarily used or stored or generated for off-site
disposal or otherwise present in or at properties of the relevant property
type; and (3) such Mortgaged Property is not subject to any environmental
hazard (including, without limitation, any situation involving Hazardous
Materials) which under the Environmental Laws would have to be eliminated
before the sale of, or which could otherwise reasonably be expected to
adversely affect in more than a de minimis manner the value or
marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an 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, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or
covenants given by the related Mortgagor in connection with such Mortgage
Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the date which is five years after the maturity date (or, in the case of
an ARD Loan, the final maturity date) of the related Mortgage Loan, is
non-cancelable by the insurer during such term and the premium for such
policy has been paid in full. All environmental assessments or updates
that were in the possession of the Seller and that relate to a Mortgaged
Property identified on Schedule I, as being insured by an In Lieu of
Policy have been delivered to or disclosed to the In Lieu of Policy
carrier issuing such policy prior to the issuance of such policy.
(22) As of the date of origination of the related Mortgage Loan, and, as
of the Closing Date, the Mortgaged Property is covered by insurance policies
providing the coverage described below and the Mortgage Loan documents permit
the mortgagee to require the coverage described below. All premiums with respect
to the Insurance Policies insuring each Mortgaged Property have been paid in a
timely manner or escrowed to the extent required by the Mortgage Loan documents,
and the Seller has not received any notice of cancellation or termination. The
relevant Servicing File contains the Insurance Policy required for such Mortgage
Loan or a certificate of insurance for such Insurance Policy. Each Mortgage
requires that the related Mortgaged Property and all improvements thereon are
covered by Insurance Policies or providing coverage for losses (subject to
customary deductibles) sustained by (A) fire and extended perils included within
the classification "All Risk of Physical Loss" in an amount sufficient to
prevent the Mortgagor from being deemed a co-insurer and to provide coverage in
an amount equal to the lesser of the full replacement cost of such Mortgaged
Property (in some cases exclusive of excavations, underground utilities,
foundations and footings) and the outstanding principal balance of the related
Mortgage Loan with an appropriate endorsement to avoid application of any
coinsurance provision; such policies contain a standard mortgage clause naming
mortgagee and its successor in interest as additional insureds or loss payee, as
applicable; (B) business interruption or rental loss insurance in an amount at
least equal to (a) 12 months of operations or (b) in some cases all rents and
other amounts customarily insured under this type of insurance of the Mortgaged
Property; (C) flood insurance (if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency ("FEMA"), with respect to certain Mortgage Loans and the
Secretary of Housing and Urban Development with respect to other Mortgage Loans,
as having special flood hazards) in an amount not to exceed amounts prescribed
by FEMA; (D) workers' compensation, if required by law; (E) comprehensive
general liability insurance in an amount consistent with the standard utilized
by the Seller with respect to loans it holds for its own account, but not less
than $1 million; all such Insurance Policies contain clauses providing they are
not terminable and may not be terminated, without thirty (30) days prior written
notice to the mortgagee (except where applicable law requires a shorter period
or except for nonpayment of premiums, in which case not less than ten (10) days
prior written notice to the mortgagee is required). In addition, each Mortgage
permits the related mortgagee to make premium payments to prevent the
cancellation thereof and shall entitle such mortgagee to reimbursement therefor.
Any insurance proceeds in respect of a casualty loss or taking will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or the payment of the outstanding principal balance of the related
Mortgage Loan together with any accrued interest thereon. If the Mortgaged
Property is located within 25 miles of the coast of the Gulf of Mexico or the
Atlantic coast of Florida, Georgia, South Carolina or North Carolina, such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the full insurable value, or 100% of the replacement cost, of the
improvements located on the related Mortgaged Property. The related Mortgaged
Property is insured by an Insurance Policy, issued by an insurer meeting the
requirements of such Mortgage Loan and having a claims-paying or financial
strength rating of at least "A-:VIII" from A.M. Best Company or "A-" (or the
equivalent) from Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., Fitch, Inc. or Xxxxx'x Investors Service, Inc. An
architectural or engineering consultant has performed an analysis of each of the
Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the
structural and seismic condition of such property, for the sole purpose of
assessing the probable maximum loss ("PML") for the Mortgaged Property in the
event of an earthquake. In such instance, the PML was based on a 450 or 475 year
return period, an exposure period of 50 years and a 10% probability of
exceedence. If the resulting report concluded that the PML would exceed 20% of
the amount of the replacement costs of the improvements, earthquake insurance on
such Mortgaged Property was obtained by an insurer rated at least "A-:VIII" by
A.M. Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., Fitch, Inc. or Xxxxx'x
Investors Service, Inc. To the Seller's actual knowledge, the insurer issuing
each of the foregoing insurance policies is qualified to write insurance in the
jurisdiction where the related Mortgaged Property is located.
(23) All amounts required to be deposited by each Mortgagor at origination
under the related Mortgage Loan documents have been deposited or have been
withheld from the related Mortgage Loan proceeds at origination and there are no
deficiencies with regard thereto.
(24) Whether or not a Mortgage Loan was originated by the Seller, to the
Seller's knowledge, with respect to each Mortgage Loan originated by the Seller
and each Mortgage Loan originated by any Person other than the Seller, as of the
date of origination of the related Mortgage Loan, and, to the Seller's actual
knowledge, with respect to each Mortgage Loan originated by the Seller and any
prior holder of the Mortgage Loan, as of the Closing Date, there are no actions,
suits, arbitrations or governmental investigations or proceedings by or before
any court or other governmental authority or agency now pending against or
affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property, the security intended to be provided with respect to the related
Mortgage Loan, or the ability of such Mortgagor and/or the current use of such
Mortgaged Property to generate net cash flow to pay principal, interest and
other amounts due under the related Mortgage Loan; and to the Seller's actual
knowledge there are no such actions, suits or proceedings threatened against
such Mortgagor.
(25) The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller or, to the knowledge of the Seller, any
predecessor or prior servicer with respect to the Mortgage Loan, have been in
all material respects legal and have met customary industry standards.
(26) The originator of the Mortgage Loan or the Seller has inspected or
caused to be inspected each related Mortgaged Property within the 12 months
prior to the Closing Date.
(27) The Mortgage Loan documents require the Mortgagor to provide the
holder of the Mortgage Loan with at least annual operating statements, financial
statements and except for Mortgage Loans for which the related Mortgaged
Property is leased to a single tenant, rent rolls.
(28) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller (except
to the extent they have been disbursed for their intended purpose), and all
amounts required to be deposited by the applicable Mortgagor under the related
Mortgage Loan documents have been deposited, and there are no deficiencies with
regard thereto (subject to any applicable notice and cure period). All of the
Seller's interest in such escrows and deposits will be conveyed by the Seller to
the Purchaser hereunder.
(29) No two or more Mortgage Loans representing more than 5% of the
aggregate outstanding principal amount of all the mortgage loans included in the
Trust Fund has the same Mortgagor or, to the Seller's knowledge, are to
Mortgagors which are entities controlled by one another or under common control.
(30) Each Mortgagor with respect to a Mortgage Loan with a principal
balance as of the Cut-off Date in excess of $15,000,000 included in the Trust
Fund is an entity whose organizational documents or related Mortgage Loan
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents or Mortgage Loan documents provide that it shall engage
solely in the business of owning and operating the Mortgaged Property and which
does not engage in any business unrelated to such property and the financing
thereof, does not have any assets other than those related to its interest in
the Mortgaged Property or the financing thereof or any indebtedness other than
as permitted by the related Mortgage or the other Mortgage Loan documents, and
the organizational documents of which require that it have its own separate
books and records and its own accounts, in each case which are separate and
apart from the books and records and accounts of any other Person.
(31) The gross proceeds of each Mortgage Loan to the related Mortgagor at
origination did not exceed the non-contingent principal amount of the Mortgage
Loan and either: (A) such Mortgage Loan is secured by an interest in real
property having a fair market value (1) at the date the Mortgage Loan was
originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (2) at the Closing Date at least equal to 80% of the original
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (31) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loan; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). If the Mortgage Loan was "significantly modified" prior to
the Closing Date so as to result in a taxable exchange under Section 1001 of the
Code, it either (i) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (ii) satisfies the provisions of
either clause (A)(1) above (substituting the date of the last such modification
for the date the Mortgage Loan was originated) or clause (A)(2), including the
proviso thereto. The Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard to the rule in Treasury
Regulations Section 1.860G-2(f)(2) that treats certain defective mortgage loans
as qualified mortgages). Any prepayment premium and yield maintenance charges
applicable to the Mortgage Loan constitute "customary prepayment penalties"
within the meaning of Treasury Regulations Section 1.860G-1(b)(2).
(32) The Mortgage Loans contain a "due on sale" clause, which provides for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan if, without the prior written consent of the holder of the Mortgage Loan,
the property subject to the Mortgage, or any controlling interest therein, is
directly or indirectly transferred or sold (except that it may provide for
transfers by devise, descent or operation of law upon the death of a member,
manager, general partner or shareholder of a mortgagor and that it may provide
for assignments subject to the Mortgage Loan holder's approval of transferee,
transfers to affiliates, transfers to family members for estate planning
purposes, transfers among existing members, partners or shareholders in
Mortgagor or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage Loan documents contain a "due on
encumbrance" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if the property subject to the
Mortgage or any controlling interest in the Mortgagor is further pledged or
encumbered, unless the prior written consent of the holder of the Mortgage Loan
is obtained (except that it may provide for assignments subject to the Mortgage
Loan holder's approval of transferee, transfers to affiliates or transfers of
passive interests so long as the key principals or general partner retains
control). The Mortgage Loan documents require the Mortgagor to pay all
reasonable fees and expenses of the holder of the Mortgage associated with
assumptions or transfers of interest in connection with any repayment of the
Mortgage Loan on the related Mortgaged Property. As of the Closing Date, the
Seller holds no preferred equity interest in any Mortgagor and the Seller holds
no mezzanine debt related to such Mortgaged Property.
(33) Except with respect to the AB Mortgage Loans, each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
(34) Each Mortgage Loan containing provisions for defeasance of mortgage
collateral provides that: defeasance may not occur any earlier than two years
after the Closing Date; and requires either (a) the prior written consent of,
and compliance with the conditions set by, the holder of the Mortgage Loan to
any defeasance, or (b)(i) the replacement collateral consist of U.S. "government
securities," within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due (up to the maturity date for the related Mortgage
Loan, the Anticipated Repayment Date for ARD Loans or the date on which the
Mortgagor may prepay the related Mortgage Loan without payment of any prepayment
penalty); (ii) the loan may be assumed by a Single Purpose Entity approved by
the holder of the Mortgage Loan; (iii) counsel provide an opinion that the
trustee has a perfected security interest in such collateral prior to any other
claim or interest; and (iv) such other documents and certifications as the
mortgagee may reasonably require which may include, without limitation, (A) a
certification that the purpose of the defeasance is to facilitate the
disposition of the mortgaged real property or any other customary commercial
transaction and not to be part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages and (B) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage Note
when due. Each Mortgage Loan containing provisions for defeasance provides that,
in addition to any cost associated with defeasance, the related Mortgagor shall
pay, as of the date the mortgage collateral is defeased, all scheduled and
accrued interest and principal due as well as an amount sufficient to defease in
full the Mortgage Loan (except as contemplated in paragraph (35) hereof). In
addition, if the related Mortgage Loan permits defeasance, then the Mortgage
Loan documents provide that the related Mortgagor shall (x) pay all reasonable
fees associated with the defeasance of the Mortgage Loan and all other
reasonable expenses associated with the defeasance, or (y) provide all opinions
required under the related Mortgage Loan documents, and in the case of loans
with an outstanding principal balance as of the Cut-off Date of $40,000,000 or
greater, (1) a REMIC opinion and (2) rating agency letters confirming that no
downgrade or qualification shall occur as a result of the defeasance.
(35) In the event that a Mortgage Loan is secured by more than one
Mortgaged Property, then, in connection with a release of less than all of such
Mortgaged Properties, a Mortgaged Property may not be released as collateral for
the related Mortgage Loan unless, in connection with such release, an amount
equal to not less than 125% of the Allocated Loan Amount for such Mortgaged
Property is prepaid or, in the case of a defeasance, an amount equal to 125% of
the Allocated Loan Amount is defeased through the deposit of replacement
collateral (as contemplated in clause (34) hereof) sufficient to make all
scheduled payments with respect to such defeased amount, or such release is
otherwise in accordance with the terms of the Mortgage Loan documents.
(36) Each Mortgaged Property is owned by the related Mortgagor, except for
Mortgaged Properties which are secured in whole or in a part by a Ground Lease
and for out-parcels, and is used and occupied for commercial or multifamily
residential purposes in accordance with applicable law.
(37) In the event of casualty or destruction of the Mortgaged Property,
any non-conformity with applicable zoning laws as of the origination date will
not prohibit the Mortgaged Property improvements from being restored or repaired
in all material respects, to the use or structure at the time of such casualty,
except for restrictions on its use or rebuildability for which (i) law and
ordinance insurance coverage has been obtained in amounts consistent with the
standards utilized by the Seller or (ii) an ALTA lender's title insurance policy
(or binding commitment therefor) or the equivalent as adopted in the applicable
jurisdiction insures against such non-conformity. For purposes of the foregoing
sentence, it is understood that any change to the use or structure of the
Mortgaged Property which materially and adversely affects the related
Mortgagor's ability to timely make payments on the related Mortgage Loan shall
be deemed to be a material change to such use or structure.
(38) Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the related Mortgagor under the Mortgage Loan.
The Mortgage Loan was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.
(39) No court of competent jurisdiction will determine in a final decree
that fraud, with respect to the Mortgage Loans has taken place on the part of
the Seller or, to the Seller's actual knowledge, on the part of any originator,
in connection with the origination of such Mortgage Loan.
(40) The related Mortgage or other Mortgage Loan documents provide a grace
period for delinquent Monthly Payments no longer than ten (10) days from the
applicable payment date.
(41) The following statements are true with respect to the related
Mortgaged Property: (a) the Mortgaged Property is located on or adjacent to a
dedicated road or has access to an irrevocable easement permitting ingress and
egress and (b) the Mortgaged Property is served by public or private utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Mortgaged Property is currently being utilized.
(42) None of the Mortgage Loan documents contain any provision that
expressly excuses the related borrower from obtaining and maintaining insurance
coverage for acts of terrorism and, in circumstances where terrorism insurance
is not expressly required, the mortgagee is not prohibited from requesting that
the related borrower maintain such insurance, in each case, to the extent such
insurance coverage is generally available for like properties in such
jurisdictions at commercially reasonable rates. 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.
(43) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged Property,
the portion of principal of the related Mortgage Loan allocated to such
Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all or
substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the Pooling
and Servicing Agreement.
The term "Environmental Site Assessment" shall mean (x) a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials and being generally consistent with assessments of
environmental hazards undertaken by the Seller for similar properties, as of the
date of such assessment, and (y) if in accordance with customary industry
standards a reasonable lender would require it, a Phase II environmental report,
each report in clauses (x) and (y) prepared by an independent licensed third
party professional experienced in environmental matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the Servicer and
discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest on
an ARD Loan in accordance with the following terms. Commencing on the respective
Anticipated Repayment Date each ARD Loan (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan)
generally will bear interest at a fixed rate (the "Revised Rate") per annum
equal to the Mortgage Interest Rate plus a percentage specified in the related
Mortgage Loan documents. Until the principal balance of each such Mortgage Loan
has been reduced to zero (pursuant to its existing terms or a unilateral option,
as defined in Treasury Regulations under Section 1001 of the Code, in the
Mortgage Loans exercisable during the term of the Mortgage Loan), such Mortgage
Loan will only be required to pay interest at the Mortgage Interest Rate and the
interest accrued at the excess of the related Revised Rate over the related
Mortgage Interest Rate will be deferred (such accrued and deferred interest and
interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon one
or more of the specified documents or other information in connection with
a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all
material respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein
to be true, accurate and complete in all material respects and has no
actual knowledge of any facts or circumstances which would render reliance
thereon unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, 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 of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject, and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated,
enjoyment, value or marketability of such Mortgaged Property, provided,
however, that, for the avoidance of doubt, Permitted Encumbrances shall
exclude all pari passu, second, junior and subordinated mortgages but
shall not exclude mortgages that secure Mortgage Loans that are
cross-collateralized with other Mortgage Loans.
Other. For purposes of these representations and warranties, the term "to
the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
inaccurate based upon the Seller's reasonable inquiry and during the course of
such inquiry, no such officer, employee or agent of the Seller has obtained any
actual knowledge of any facts or circumstances that would cause such person to
believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that a director, officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS
OBTAINED IN LIEU OF AN ENVIRONMENTAL SITE ASSESSMENT
[NONE]
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH ENVIRONMENTAL INSURANCE IS MAINTAINED
[NONE]
EXHIBIT C
EXCEPTIONS
----------
-------------------- ----------------------------------------------------------
Representation
No. Description of Exception
-------------------- ----------------------------------------------------------
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(NATIXIS LOANS)
Note: The Mortgage Loan known as Baywood Staybridge / BWI Airport is
structured with the related promissory note secured by a guaranty
agreement (rather than a deed of trust), which guaranty agreement from the
related property owner, in favor of the lender covers all of the
obligations under the related promissory note. All of the obligations
under the related guaranty agreement are secured by an indemnity deed of
trust ("IDOT"). With respect to certain of the representation and
warranties, with respect to this Mortgage Loan, statements regarding the
borrower relate to the guarantor, as the owner of the Mortgaged Property.
------------------------------- ------------------------------------------------
ALL NATIXIS LOANS, except for Exception
Shoppes at El Paso (insurer
with A rating)
------------------------------- ------------------------------------------------
Exception to Representation Insurance policies are required to be issued
22 - Insurance by insurers with rating of A:VII from A.M.
Best Company or BBB (or the equivalent) or
better from Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx
Companies, Inc., Fitch, Inc. or Xxxxx'x
Investor Services, Inc.
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
Loan Name: The Shoppes at El Exception
Paso [$70,000,000]
------------------------------- ------------------------------------------------
Exception to Representation 32 Dominion Capital Management made a $9,500,000
- Due on Sale preferred equity investment in the borrower
at origination and is scheduled to make a
single subsequent $3,000,000 preferred equity
investment no later than January 2008. The
preferred equity
investment must be repurchased at any time
during the period commencing on the 6th month
after origination through the 35th month
after origination.
------------------------------- ------------------------------------------------
Exception to Representation 32 The related loan documents permit the
- Due on Sale borrower to incur future mezzanine debt
subject to certain conditions including, but
not limited to: (i) the loan-to-value ratio
not exceeding 85% and (ii) the debt service
coverage ratio being equal to or greater than
1.05x.
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
Loan Name: ARC Rite Aid I Exception
[$12,808,265]
------------------------------- ------------------------------------------------
Exception to The related loan documents permit the
Representations 12 and 35 borrower to obtain the release of any of the
-Set-Offs and Releases individual properties from the lien of the
mortgage upon the satisfaction of certain
conditions specified in the loan documents,
including without limitation (i) the transfer
of the release parcel to a bona-fide
unaffiliated third party; (ii) no event of
default has occurred and is continuing; (iii)
prepayment of principal in an amount equal to
the greater of (a) net sale proceeds or (b)
115% of the allocated loan amount of the
individual property; (iv) after giving effect
to such release, the debt service coverage
ratio is not less than the debt service
coverage ratio immediately preceding such
release, provided, however, that the borrower
may prepay the loan to a level necessary to
satisfy this section (iv).
------------------------------- ------------------------------------------------
Exception to So long as each sole tenant is in occupancy
Representations 22 - under its lease of the Mortgaged Property
Insurance and is paying the rent required thereunder,
the insurance requirements set forth in the
related loan documents are waived and the
provisions relating to such insurance
coverage in the applicable sole tenant's
lease will control.
------------------------------- ------------------------------------------------
Exception to The related loan documents permit the
Representations 32 - Due on borrower to transfer title to the Mortgaged
Sale Property to one or more entities as
tenants-in-common via (a) an initial transfer
by co-borrowers under the mortgage loan or
(b) future transfers by entities owning less
than 20% tenant-in-common interest in the
Mortgaged Property upon satisfaction of
certain conditions specified in the loan
documents, including without limitation (i)
no event of default has occurred and is
continuing; (ii) the co-owner trasferees are
"Accredited Investors" within the meaning of
Regulation D of the Securities Act; and (iii)
the total number of owners of
tenant-in-common interest in the Mortgaged
Property does not exceed the lesser of (a) 35
or (b) maximum number allowable under the
Revenue Procedure 2002-22, I.R.B. 2002-14.
------------------------------- ------------------------------------------------
Exception to The related loan documents require the
Representations 42 - borrower to maintain terrorism insurance
Terrorism Insurance coverage only so long as it is commercially
available and the rates and terms are
consistent with those paid with respect to
coverage for comparable properties in the
vicinity of the Mortgaged Property, and
either prudent owners of real estate
comparable to the Mortgaged Property are
maintaining such coverage or prudent lenders
to such owners are requiring such owners to
maintain such coverage. The related loan
documents do not require the borrower to
incur a cost for terrorism coverage that is
in excess of two (2) times the costs of the
previous year's insurance premiums for all
insurance policies required to be maintained
by the borrower (inclusive of the costs
attributable to terrorism insurance) (the
"Terrorism Insurance Cap") for the
immediately preceding annual policy period.
In the event that the annual premium for
terrorism coverage in an amount equal to the
full replacement cost of the Mortgaged
Property exceeds the Terrorism Insurance Cap,
the related loan documents obligate the
borrower to maintain as much terrorism
coverage as is available for a premium equal
to the Terrorism Insurance Cap.
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
Loan Name: Baywood Hampton Exception
Inn & Suites San Antonio
[$10,000,000]
------------------------------- ------------------------------------------------
Exception to Representation The zoning for the Mortgaged Property has
37 - Rebuildability been changed post-development, restricting
hotel and other commercial uses in case of
major casualty requiring rebuilding. The
Borrower is obligated to provide to the
Lender within 90 days after origination (a)
evidence of enhanced L&O insurance
coverage with respect to the new zoning
requirements or (b) evidence from appropriate
government agencies that the zoning
requirements do not restrict hotel use in
case of major casualty requiring rebuilding.
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
Loan Name: Baywood Exception
Fairfield Inn & Suites
Temple Terrace [$5,600,000]
------------------------------- ------------------------------------------------
Exception to Approximately 1/2 of the swimming pool for
Representations 16, 18 and the Mortgaged Property was constructed over
37 - Zoning, Encroachments, the setback line applicable to such pool at
Rebuildability the time of construction and (i) could not be
insured under available title insurance and
(ii) was not subject to coverage under law
and ordinance insurance. However, the
non-compliance is covered under the
non-recourse carve-out guaranty.
------------------------------- ------------------------------------------------
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[Natixis Real Estate Capital Inc] [Natixis Commercial Mortgage Funding, LLC], a
[New York corporation] [Delaware limited liability company] (the "Company"),
hereby certify as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of December
20, 2007 (the "Agreement"), between the Company and X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof with the same force and
effect as if made on and as of the date hereof.
2. The Company has complied with all the covenants and satisfied all the
conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice
or the passage of time or both, would constitute a default under the
Agreement.
3. [NATIXIS RE ONLY] I have examined the information regarding the
Mortgage Loans in each Free Writing Prospectus (as defined in the
Indemnification Agreement), when read in conjunction with the other
Time of Sale Information (as defined in the Indemnification Agreement),
the Prospectus, dated August 3, 2007, as supplemented by the Prospectus
Supplement, dated December 18, 2007 (collectively, the "Prospectus"),
relating to the offering of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-SB, Class X-2, Class A-M and Class A-J, the Private
Placement Memorandum, dated December 18, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of
the Class X-1, Class B, Class C, Class D Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q,
Class T and Class NR Certificates, and the Residual Private Placement
Memorandum, dated December 18, 2007 (together with the Privately
Offered Certificate Private Placement Memorandum, the "Private
Placement Memoranda"), relating to the offering of the Class R and
Class LR Certificates, and nothing has come to my attention that would
lead me to believe that any Free Writing Prospectus, including any
diskette attached thereto, when read in conjunction with the other Time
of Sale Information, as of the Time of Sale (as defined in the
Indemnification Agreement) or as of the date hereof, the Prospectus, as
of the date of the Prospectus Supplement or as of the date hereof, or
the Private Placement Memoranda, as of the date of the Private
Placement Memoranda or as of the date hereof, included or includes any
untrue statement of a material fact relating to the Mortgage Loans or
in the case of any Free Writing Prospectus, when read in conjunction
with the other Time of Sale Information, omitted or omits 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.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
IN WITNESS WHEREOF, I have signed my name this 20th day of December
2007.
By:_____________________________
Name:
Title:
