EXHIBIT 10.3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
NOMURA CREDIT & CAPITAL, INC.,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2007, is between X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and Nomura Credit & Capital, Inc., as
seller (the "Seller").
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 March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-Trustee"), 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 "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A and the term "Mortgaged Properties" refers to the
properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller 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, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(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 Closing Date
between the applicable Master Servicer and the Seller) all of its right, title,
and interest in and to the Mortgage Loans including all interest and principal
received on or with respect to the 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 the 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.
The Seller's records will accurately reflect the sale of each Mortgage Loan to
the Purchaser. The Depositor will sell the Class A-1, Class A-1S, Class A-2,
Class A-2S, Class A-2SFL, Class A-3, Class A-3S, Class A-1A, Class X, Class A-M,
Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B-S, Class C-S and Class
D-S Certificates (the "Offered Certificates") to the underwriters (the
"Underwriters") specified in the underwriting agreement dated March 26, 2007
(the "Underwriting Agreement") between the Depositor and X.X. Xxxxxx Securities
Inc. ("JPMSI") for itself and as representative of the several underwriters
identified therein, and the Depositor will sell the Class B, Class C, Class D,
Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H, Class H-S,
Class J, Class K, Class L, Class M, Class N, Class P and Class NR Certificates
(the "Private Certificates") to JPMSI and UBS Securities LLC, the initial
purchasers (together with the Underwriters, the "Dealers") specified in the
certificate purchase agreement dated March 26, 2007 (the "Certificate Purchase
Agreement"), between the Depositor and JPMSI for itself and as representative of
the initial purchasers identified therein.
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 Seller or at the
Seller's direction in immediately available funds the sum of $1,265,015,257.72
(which amount is inclusive of accrued interest and exclusive of the Seller's pro
rata share of 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 applicable Master Servicer. 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
Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The 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 the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the 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
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the
applicable Master Servicer, the Servicing File for each Mortgage Loan
transferred pursuant to this Agreement; provided that the Seller shall not be
required to deliver any draft documents, or any attorney client communications
which are privileged communications or constitute legal or other due diligence
analyses, or internal communications of the Seller or its affiliates, or credit
underwriting or other 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 Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee 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 applicable Master Servicer has
exercised all remedies available under the applicable Mortgage Loan documents to
collect such Transfer Modification Costs from such Mortgagor, in which case the
applicable Master Servicer shall give the Seller notice of such failure and the
amount of such Transfer Modification costs and the Seller shall pay such
Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the 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
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 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
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 Seller. The 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 Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the applicable Master Servicer, in order to assist and facilitate
in the transfer of the servicing of the Mortgage Loans to the applicable Master
Servicer, including effectuating the transfer of any letters of credit with
respect to any Mortgage Loan to the Trustee (in care of the applicable Master
Servicer) for the benefit of Certificateholders. Prior to the date that a letter
of credit, if any, with respect to any Mortgage Loan is transferred to the
Trustee (in care of the applicable Master Servicer), the Seller will cooperate
with the reasonable requests of the applicable 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;
(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 Annexes
X-0, X-0, X-0 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the 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 Annexes X-0, X-0, X-0
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the 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 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 Annexes X-0, X-0, X-0 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is so amended or supplemented, be misleading
or so that the Prospectus Supplement, including Annexes X-0, X-0, X-0 and B
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 March 26,
2007 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name (only with respect to
disclosure related to Items 1117 or 1119 of Regulation AB) on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a corporation, 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 legally authorized to transact business in the State of
New York. The 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 the
Seller have been duly authorized by all requisite action by the 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 the
Seller and constitutes a legal, valid and binding obligation of the
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 the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents as contemplated herein, (B) the execution and
delivery by the Seller or enforceability against the Seller of the
Mortgage Loans or this Agreement, or (C) the performance of the 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 the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the 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 Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do 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 the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the 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 the 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 the 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 Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the 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 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);
and
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
(b) The Purchaser represents and warrants to the Seller 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 or agreement 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 or agreement;
(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 any 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 Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and 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 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) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if 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 Seller 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, any Master Servicer, the
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.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the 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 Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
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 applicable 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 the 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 the Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, the Seller 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 the Seller shall have delivered an officer's certificate to
the Rating Agencies, the applicable Master Servicer, the Special Servicer, the
Trustee and the Directing Certificateholder setting forth the reason such Breach
or Defect is not capable of being cured within the Initial Resolution Period and
what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller 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, the Seller 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
Seller shall 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 applicable 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, the Seller 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, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller 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 the Seller 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 the Seller 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 the Seller 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
the Defects previously described in clauses (a) through (f)) shall be considered
to materially and adversely affect the value of any Mortgage Loan, the value of
the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein 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 its Custodian within 18 months after 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 the Seller 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 the Mortgage Loan affected by the applicable
Defect or Breach and the Qualified Substitute Mortgage Loan, if any, satisfy all
other criteria for repurchase or substitution, as applicable, of Mortgage Loans
set forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Defect
exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Loan Repurchase Criteria have been satisfied, so long as the
scope and cost of such Appraisal has been approved by the Seller (such approval
not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Trustee shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Trustee 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 removes 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 that
remains in the Trust Fund is modified to terminate the related cross
collateralization and/or cross default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
any modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
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, as shall be necessary to vest in the Seller 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
the Seller of all portions of the Mortgage File and other documents (including
the Servicing File) 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 the Seller 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. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the
sole remedy available to the Purchaser in connection with a Breach or Defect
(subject to the last sentence of the second paragraph of Section 6(e)). It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes only; provided, however, that no limitation of
remedy is implied with respect to the Seller'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 the 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 the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's certificate of incorporation and by-laws,
certified as of a recent date by the Secretary or Assistant Secretary of
the Seller;
(ii) an original or copy of a certificate of good standing of the
Seller issued by the Secretary of the State of Delaware dated not earlier
than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the 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) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's articles of association or by-laws 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
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the 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 the
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 the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the 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 the Seller or the 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 the Seller
or the 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) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The 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, Charlotte, North Carolina, 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 Seller will pay its pro rata share (the
Seller's 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 (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing 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 Seller with respect to numerical information
in respect of the Mortgage Loans, other mortgage loans and the Certificates
included in the Prospectus, the Memoranda (as defined in the Indemnification
Agreement) and Term Sheet (as defined in the Indemnification Agreement), or
items similar to the Term Sheet, 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, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda 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. The 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. The Seller hereby acknowledges its obligations (subject to the
provisions hereof), 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 the 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
the 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:
Xxxxxx Xxxxx, fax number (000) 000-0000 with a copy to Xxxxxx Xxxxx, fax number
(000) 000-0000, (ii) in the case of the Seller, Nomura Credit & Capital, Inc., 2
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N.
Xxxxx XxXxxxx, fax number: (000) 000-0000 and (iii) in the case of any of the
preceding parties, such other address or fax number as may hereafter be
furnished to the other party in writing by such party.
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 the 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 the Seller whatsoever shall be effective against the Seller
unless the 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. Except as set forth in Section 6
herein, 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 the Seller and neither party 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 CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., as Purchaser
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
NOMURA CREDIT & CAPITAL, INC., as
Seller
By: /s/ N. Xxxxx XxXxxxx
--------------------------------------
Name: N. Xxxxx XxXxxxx
Title: Managing Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Loan # Loan Seller
------ -----------
1 NCCI
24 NCCI
26 NCCI
30 NCCI
33 NCCI
34 NCCI
35 NCCI
36 NCCI
37 NCCI
38 NCCI
39 NCCI
40 NCCI
41 NCCI
42 NCCI
43 NCCI
50 NCCI
53 NCCI
53.01 NCCI
53.02 NCCI
53.03 NCCI
53.04 NCCI
53.05 NCCI
53.06 NCCI
53.07 NCCI
53.08 NCCI
63 NCCI
64 NCCI
67 NCCI
68 NCCI
69 NCCI
72 NCCI
79 NCCI
81 NCCI
83 NCCI
84 NCCI
89 NCCI
90 NCCI
91 NCCI
95 NCCI
96 NCCI
99 NCCI
101 NCCI
107 NCCI
108 NCCI
110 NCCI
111 NCCI
113 NCCI
125 NCCI
131 NCCI
132 NCCI
138 NCCI
140 NCCI
143 NCCI
147 NCCI
148 NCCI
152 NCCI
153 NCCI
154 NCCI
163 NCCI
167 NCCI
169 NCCI
179 NCCI
191 NCCI
195 NCCI
202 NCCI
209 NCCI
219 NCCI
221 NCCI
222 NCCI
Loan # Mortgagor Name
------ --------------
1 Coconut Point Town Center, LLC
24 WALF, LLC
26 Davies Pacific, LLC
30 Jefferson at Pelican Point, L.P.
33 00000 X. Xxxxxxxx Xxxxxx, Inc.
00 Xxxxx Xxxxxx Apts., Inc.
35 Boardwalk Apts., Inc.
36 0000 X. Xxxxx Xxxx., Inc.
37 000 X. Xxxxxxxx Xxxxxx, Inc.
38 0000 Xxxxxxxxx Xxxxx, Inc.
39 Mountainview Apts., Inc.
40 0000 Xxxxxx Xxxxxxxx Xxxxx, Inc.
41 0000 X Xxxxxxx Xxxxxx, Inc.
42 0000 Xxxxxxxxx Xxxx., Inc.
43 The Victorian Apartments, Inc.
50 Rubicon Investments II, LLC
53 Trophy Properties IV B8A, LLC
53.01 0000 Xxxxx Xxxxxx
53.02 000-000 Xxxxx Xxxxxx
53.03 000-000 Xxxxx Xxxxxx
53.04 000 X'Xxxxxxx Xxxxxx
53.05 0000 Xxxxx Xxx Xxxx Xxxxxx
53.06 000 Xxxxx Xxxxxx
53.07 000 Xxxxxx Xxxxxx
53.08 0000 Xxxxxxx Xxxxxx
63 MG Pinnacle Heights Apartments LLC
64 Addison Associates, LLC
67 Xxxxxx/Xxxx Huntsville Hotel, LLC
68 Xxxxx New National, LLC and New National, LLC
69 Shea and Tatum Associates Limited Partnership
72 Worthington Xxxxxxx Columbus Associates, L.L.C.
79 Hampton Apts., Inc.
81 Kapolei Marketplace, LLC and Kapolei-57, LLC
83 The Pointe at Raiders Campus 22 LLC, The Pointe at Raiders Campus 21 LLC, The Pointe at Raiders Campus 24 LLC, The
Pointe at Raiders Campus 13 LLC, The Pointe at Raiders Campus 15 LLC, The Pointe at Raiders Campus 16 LLC, The Pointe
at Raiders Campus 17 LLC, The Pointe at Raiders Campus 18 LLC, The Pointe at Raiders Campus 19 LLC
84 Doheny V LLC, Brahms Sierra LLC
89 PCCP CS LANDCO Tanque Verde, LLC
90 Inland Riverwoods, L.L.C.
91 W Hemet Holdings LLC
95 A-S Northwest Crossing Acquisition LLC
96 455 Associates L.L.C.
99 Ashton Oaks Limited Partnership
101 MG Colonia Del Rio Apartments LLC
000 Xxxxxxx Xxxxx Xxxx Apartments LLC
108 Sagebrush Stonegate Apartments, LLC, Xxxxxx Stonegate Apartments, LLC, X. Xxxxxxxx Stonegate Apartments, LLC, X.
Xxxxxxxx Apartments, LLC, Xxxxx Stonegate Apartments, LLC, Xxxxxxxx Stonegate Apartments, LLC, Xxxxxxxx Stonegate
Apartments, LLC, Xxxxxxx Stonegate Apartments, LLC, Xxxx Stonegate Apartments, LLC, LIU Stonegate Apartments, LLC,
McLennan Stonegate Apartments, LLC, Ratzlaf Stonegate Apartments, LLC, Shimoda Stonegate Apartments, LLC, XxXxxxxx
Stonegate Apartments, LLC, Xxxxxx Stonegate Apartments, LLC, Xxxxxx Stonegate Apartments, LLC, Ebbole Stonegate
Apartments, LLC, Encanto Stonegate Apartments, LLC, Xxxxxxx Stonegate Apartments, LLC
110 MG Hacienda Del Rio Apartments LLC
111 GWR-B Tempe, LLC
113 One South King, LLC and South Xxxx XX, LLC
125 MB Rockford State, L.L.C.
000 XXXX, X.X.X.
000 XXXX, X.X.X.
138 CP Vineyard Center ONT LLC
000 Xxxxxx Xxxxxx Xxxxxxx, LLC and Xx Xxxx-Xxxxxx, LLC
000 Xxxxxxxx Xxxxxxxxxx Xxxxxxx, LLC
000 Xxxxx Xxxxx Xxxx Apartments, Ltd.
000 Xxxxxxxx Xxxxxxx LLC
152 TLG Springcreek Apartments, LLC, TLG Springcreek Apartments 2, LLC, TLG Springcreek Apartments 3, LLC, TLG Springcreek
Apartments 4, LLC, TLG Springcreek Apartments 5, LLC, TLG Springcreek Apartments 6, LLC, TLG Springcreek Apartments 7,
LLC, TLG Springcreek Apartments 8, LLC, TLG Springcreek Apartments 9, LLC, TLG Springcreek Apartments 10, LLC, TLG
Springcreek Apartments 11, LLC
153 CP Simi Shops SV LLC
154 Wine Valley Inn, LLC
163 Olde Towne Village LLC
167 Netcom Hospitality LLC
169 Xxxxx 825 Pine, LLC
179 8633 California LLC
000 Xxxxx Xxxxx Apartments LLC
000 Xxxxxxxxx Xxxxx LLC
000 Xxxxxxxx Xxxx Co-op, Inc.
209 1001 Jefferson, LLC
219 Skylark MHP, L.P., Rancho San Xxxxxx Limited Partnership
221 HFLP III/ Corona, LLC
222 Shri Krishna, Inc.
Loan # Property Address City State Zip Code County
------ ---------------- ---- ----- -------- ------
1 NEQ XX 00 xxx Xxxxxxx Xxxx Xxxxxx XX 00000 Xxx
24 23600 - 00000 Xx Xxxx Xxxx Xxxx Xxxxxx XX 00000 Orange
26 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Honolulu
30 000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000 Ventura
33 00000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000 San Bernardino
34 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Riverside
35 0000 0xx Xxxxxx Xxxxx Xxxx XX 00000 Orange
36 0000 Xxxxx Xxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 Xxxxx
37 000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Los Angeles
38 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 Los Angeles
39 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx XX 00000 Riverside
40 0000 Xxxxxx Xxxxxxxx Xxxxx Xxx Xxxxxxxxxx XX 00000 San Bernardino
41 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 San Bernardino
42 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000 Los Angeles
43 0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Dallas
50 0000 Xxxx 000xx Xxxxxx Xxxxxxxx Xxxx XX 00000 Xxxxxxx
53 Various San Francisco CA Various San Francisco
53.01 Xxx Xxxxxxxxx XX 00000 San Francisco 1155 Xxxxx
53.02 Xxx Xxxxxxxxx XX 00000 San Francisco 940 Xxxxx
53.03 Xxx Xxxxxxxxx XX 00000 San Francisco 755 Green
53.04 Xxx Xxxxxxxxx XX 00000 San Francisco 815 O'Farrell
53.05 Xxx Xxxxxxxxx XX 00000 San Francisco 0000 Xxxxx Xxx Xxxx
00.00 Xxx Xxxxxxxxx XX 00000 San Francisco 720 Xxxxx
53.07 Xxx Xxxxxxxxx XX 00000 San Francisco 626 Xxxxxx
53.08 Xxx Xxxxxxxxx XX 00000 San Francisco 1705 Octavia
63 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000 Pima
64 00000 Xxx Xxxxxxx Xxxx Xxxx Xxxxx XX 00000 Henrico
67 5 Tranquility Base Xxxxxxxxxx XX 00000 Madison
68 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 Miami-Dade
69 Northeast corner of East Xxxx Boulevard
and Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 Maricopa
72 000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 Franklin
79 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 Xxxxx
81 000 Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Honolulu
83 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxxxxxxxx
84 000 Xxx Xxxxxxx Xxxx Xxxxxxx Xxxxx XX 00000 Mono
89 0000 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 Pima
90 X00 X00000 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000 Waukesha
91 0000-0000 Xxxx Xxxxxxx Xxxxxx Xxxxx XX 00000 Riverside
95 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Xxxxxx
96 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Xxxxx
99 0000 Xxxxxxxxxxx Xxxxx Xxxxxxx-Xxxxx XX 00000 Forsyth
101 0000 Xxxxx Xxx Xxxxxxx Xxxxxx XX 00000 Pima
107 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000 Lake
108 000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx XX 00000 Xxxxx
110 0000 Xxxxx Xxx Xxxxxxx Xxxxxx XX 00000 Pima
111 0000 Xxxxx Xxxxxxx Xxxxx Xxxxx XX 00000 Maricopa
113 00 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 Honolulu
125 0000-0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Winnebago
131 0000 Xxxx Xxxx Xxxxx Xxxxxxx XX 00000 Macon
132 0000 Xxxx Xxxxxxxxx Xxxxxxx XX 00000 Macon
138 0000-0000 Xxxx 0xx Xxxxxx Xxxxxxx XX 00000 San Bernardino
140 17333 & 00000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 San Bernardino
143 0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxx XX 00000 Xxxxx
147 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000 Xxxx
148 000 Xxxxxxxxx Xxxxx and 0-00 Xxxxxxxxxxx Xxxx Xxxxx XX 00000 Tuscarawas
152 0000 Xxxxxxxxxx Xxxx Xxxxxx XX 00000 Xxxxxx
153 0000-0000 Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 Ventura
154 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 Santa Xxxxxxx
163 000 Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxx
167 0000 Xxxxxxxxxxxx Xxxx Xxxxxx XX 00000 Durham
169 825 - 000 Xxxx Xxxxxx Xxx Xxxxxxxxx XX 00000 San Francisco
179 0000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000 Los Angeles
191 0000 Xxxxxxxxx Xxxx Xxx Xxxxxx XX 00000 Xxxxx
195 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxx
202 0000 000xx Xxxxxx Xxxxx Xxxxx XX 00000 Pinellas
209 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Washington
219 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Los Angeles
221 000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Riverside
222 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000 Union
Loan # Property Name Size Measure Interest Rate (%) Net Mortgage Interest Rate
------ ------------- ---- ------- ----------------- --------------------------
1 Xxxxxxx Xxxxx 000000 Square Feet 5.83000 5.80961
24 The Orchard at Saddleback 278461 Square Feet 6.53200 6.51161
26 Davies Pacific Center 355802 Square Feet 5.86000 5.83961
00 Xxxxxxx Xxxxx 411 Units 6.58000 6.55961
00 Xxxxxx Xxxxxxx 000 Xxxxx 5.59000 5.56961
00 Xxxxx Xxxxxx - Xxxxxxxxx 000 Units 5.59000 5.56961
00 Xxxxxxxxx / Xxxx Xxxxx 100 Units 5.59000 5.56961
36 Crosswinds 64 Units 5.64000 5.61961
37 West View (West Lake) 57 Units 5.59000 5.56961
38 2016 Xxxxxxxxx Xxxxxx 00000 Square Feet 5.59000 5.56961
39 Mountain View Townhouse 56 Units 5.59000 5.56961
40 Mountain Gate 44 Units 5.59000 5.56961
41 Central Park 40 Units 5.64000 5.61961
00 Xxxxxxx Xxxxxx 00 Units 5.59000 5.56961
43 The Victorian 127 Units 5.59000 5.56961
50 Overland Park Trade Center 651648 Square Feet 5.90000 5.87961
53 Lembi Multifamily Portfolio 291 Units 5.99000 5.96961
53.01 60 Units 00006 5.99000 16738596.49123
53.02 40 Units 00006 5.99000 5854385.96491
53.03 30 Units 00006 5.99000 4836052.63158
53.04 42 Units 00006 5.99000 4836052.63158
53.05 30 Units 00006 5.99000 4695877.19298
53.06 43 Units 00006 5.99000 4349561.40351
53.07 34 Units 00006 5.99000 4122807.01754
53.08 12 Units 00006 5.99000 1566666.66667
63 Pinnacle Heights 310 Units 5.94000 5.86961
64 Addison at Wyndham 312 Units 5.75000 5.72961
67 Marriott Hotel Huntsville AL 290 Rooms 5.86000 5.83961
68 National Hotel 151 Rooms 6.03000 6.00961
00 Xxxxxxxx Xxxxxxx Xxxxxxx 294820 Square Feet 5.38500 5.36461
72 Worthington Xxxxxxx 528 Units 5.86000 5.83961
79 The Hamptons 492 Units 5.59000 5.56961
00 Xxx Xxxxxxxxxxx xx Xxxxxxx 00000 Xxxxxx Feet 6.00000 5.96461
00 Xxxxxxx Xxxxxx-Xxxxxxxxxxxx XX 216 Units 5.79000 5.76961
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxx 00000 Square Feet 6.25000 6.22961
89 Tanque Verde Apartments 428 Units 6.86700 6.84661
90 AT&T Pewaukee 176960 Square Feet 5.94000 5.91961
91 Hemet Village 87986 Square Feet 5.53000 5.50961
00 Xxxxxxxxx Xxxxxxxx 000000 Xxxxxx Feet 6.09000 6.01961
96 000 Xxxx Xxxx Xxxxxx 000000 Xxxxxx Feet 6.18000 6.11961
00 Xxxxxx Xxxx Xxxxxxxxxx 000 Xxxxx 6.10000 6.07961
101 Colonia Del Rio 176 Units 5.94000 5.86961
000 Xxxxxxx Xxxxx 000 Xxxxx 6.24000 6.21961
000 Xxxxxxxxx at Eagle's Landing 167 Units 5.67000 5.64961
000 Xxxxxxxx Xxx Xxx 000 Units 5.94000 5.86961
111 Corporate Fountains 110769 Square Feet 6.16300 6.14261
000 Xxx Xxxxx Xxxx 00000 Xxxxxx Feet 5.64000 5.61961
000 Xxxxx Xxxxxx Xxxxxx 000000 Xxxxxx Feet 5.62300 5.60261
000 Xxxx Xxxx Xxxxxxxxxx 000 Xxxxx 5.71000 5.68961
000 Xxxx Xxxxxxxxx Xxxxxxxxxx 000 Units 5.71000 5.68961
000 Xxxxxxxx Xxxxxxx Center 49008 Square Feet 5.69000 5.66961
000 Xxxxxx Xxxxxx Xxxxxxx 214 Pads 5.92000 5.89961
143 Xxxxxxxx MHP 185 Pads 6.49000 6.46961
000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx - Xxxxxxxxxxx 00000 Square Feet 5.86000 5.83961
000 Xxxxxxxx Xxxxxxx & Xxxxxxxx Xxxxxxxxxx 000 Units 5.84000 5.81961
152 Spring Creek Apartments (Austin) 204 Units 5.66000 5.63961
000 Xxxxxx Xxxxxx Xxxxx 00000 Xxxxxx Feet 6.05000 6.02961
154 Wine Valley Inn 63 Rooms 6.38000 6.35961
163 Olde Towne 156 Units 5.84000 5.81961
000 Xxxxxxx Xxx & Xxxxxx - Xxxxxx 000 Rooms 6.16000 6.13961
000 Xxxxxx Xxxxxx 00 Units 6.18000 6.09961
179 California Senior Plaza 69 Units 6.22000 6.15961
000 Xxxxx Xxxxx 112 Units 5.84000 5.81961
195 Evergreen 125 Units 5.84000 5.81961
000 Xxxxxxxx Xxxx XXX 000 Pads 6.08000 6.05961
209 Rite Aid - Xxxxxxxxxx, XX 00000 Square Feet 5.77000 5.74961
219 Skylark MHP 46 Pads 6.12000 6.09961
221 Corona Auto Center 19500 Square Feet 5.87000 5.82961
222 Best Western- Monroe 64 Rooms 6.39000 6.29961
Loan # Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date Amort. Term
------ ---------------- -------------- ---- --------- ----------------- -----------
1 230,000,000 230,000,000 120 117 12/10/16 0
24 100,000,000 100,000,000 120 118 01/11/17 0
26 95,000,000 95,000,000 120 116 11/11/16 0
30 72,000,000 72,000,000 60 59 02/11/12 0
33 13,270,900 13,200,958 120 115 10/11/16 360
34 12,361,900 12,296,749 120 115 10/11/16 360
35 8,441,400 8,396,911 120 115 10/11/16 360
36 4,428,000 4,404,894 120 115 10/11/16 360
37 3,960,900 3,940,025 120 115 10/11/16 360
38 3,900,400 3,879,844 120 115 10/11/16 360
39 3,258,700 3,241,526 120 115 10/11/16 360
40 3,181,000 3,164,235 120 115 10/11/16 360
41 2,839,000 2,824,185 120 115 10/11/16 360
42 2,715,900 2,701,586 120 115 10/11/16 360
43 2,200,000 2,188,405 120 115 10/11/16 360
50 55,000,000 55,000,000 60 59 02/11/12 0
53 47,000,000 47,000,000 60 55 10/11/11 0
53.01 16,738,596 60 55 40827 01/00/00 0
53.02 5,854,386 60 55 40827 01/00/00 0
53.03 4,836,053 60 55 40827 01/00/00 0
53.04 4,836,053 60 55 40827 01/00/00 0
53.05 4,695,877 60 55 40827 01/00/00 0
53.06 4,349,561 60 55 40827 01/00/00 0
53.07 4,122,807 60 55 40827 01/00/00 0
53.08 1,566,667 60 55 40827 01/00/00 0
63 32,937,000 32,937,000 120 120 03/11/17 0
64 30,850,000 30,850,000 120 120 03/11/17 0
67 30,000,000 30,000,000 120 120 03/11/17 360
68 30,000,000 30,000,000 60 59 02/11/12 360
69 30,000,000 30,000,000 60 60 03/11/12 0
72 27,000,000 27,000,000 120 118 01/11/17 0
79 23,565,900 23,441,700 120 115 10/11/16 360
81 22,560,000 22,560,000 120 120 03/11/17 0
83 21,120,000 21,120,000 120 119 02/11/17 360
84 19,500,000 19,500,000 60 59 02/01/12 0
89 17,300,000 17,300,000 60 52 07/11/11 0
90 17,212,195 17,212,195 120 119 02/11/17 0
91 17,000,000 17,000,000 120 117 12/11/16 420
95 15,400,000 15,400,000 120 119 02/11/17 360
96 15,000,000 15,000,000 120 119 02/11/17 240
99 14,250,000 14,250,000 120 118 01/01/17 360
101 14,102,000 14,102,000 120 120 03/11/17 0
107 13,220,000 13,220,000 120 119 02/11/17 360
108 13,000,000 13,000,000 120 119 02/11/17 360
110 12,560,000 12,560,000 120 120 03/11/17 0
111 12,500,000 12,500,000 72 69 12/11/12 0
113 12,185,000 12,185,000 120 119 02/11/17 0
125 10,450,000 10,450,000 60 60 03/11/12 0
131 7,500,000 7,500,000 120 120 03/11/17 360
132 2,200,000 2,200,000 120 120 03/11/17 360
138 8,400,000 8,400,000 60 58 01/11/12 0
140 8,200,000 8,200,000 60 58 01/11/12 0
143 7,800,000 7,800,000 60 53 08/11/11 360
147 7,200,000 7,177,827 120 117 12/11/16 360
148 7,120,000 7,120,000 120 119 02/11/17 360
152 6,940,000 6,940,000 84 82 01/11/14 360
153 6,800,000 6,800,000 60 58 01/11/12 0
154 6,750,000 6,750,000 60 60 03/11/12 360
163 6,190,000 6,190,000 120 119 02/11/17 360
167 6,000,000 5,982,044 120 118 01/01/17 300
169 5,939,100 5,939,100 120 119 02/06/17 0
179 5,100,000 5,093,371 120 119 02/11/17 360
191 4,225,000 4,225,000 120 119 02/11/17 360
195 3,920,000 3,920,000 120 119 02/11/17 360
202 3,650,000 3,650,000 120 117 12/11/16 360
209 3,100,000 3,100,000 120 120 03/11/17 360
219 2,540,000 2,540,000 60 58 01/11/12 0
221 2,175,000 2,175,000 120 117 12/11/16 360
222 2,150,000 2,150,000 120 120 03/01/17 300
Loan # Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N)
------ ----------- -------------------- ------------------ ------------ ---------
1 0 1,132,936 0.02000 Actual/360 No
24 0 551,894 0.02000 Actual/360 No
26 0 470,360 0.02000 Actual/360 No
30 0 400,283 0.02000 Actual/360 No
33 355 76,102 0.02000 Actual/360 No
34 355 70,889 0.02000 Actual/360 No
35 355 48,407 0.02000 Actual/360 No
36 355 25,532 0.02000 Actual/360 No
37 355 22,714 0.02000 Actual/360 No
38 355 22,367 0.02000 Actual/360 No
39 355 18,687 0.02000 Actual/360 No
40 355 18,241 0.02000 Actual/360 No
41 355 16,370 0.02000 Actual/360 No
42 355 15,574 0.02000 Actual/360 No
43 355 12,616 0.02000 Actual/360 No
50 0 274,172 0.02000 Actual/360 No
53 0 237,867 0.02000 Actual/360 No
53.01 - No
53.02 - No
53.03 - No
53.04 - No
53.05 - No
53.06 - No
53.07 - No
53.08 - No
63 0 165,303 0.07000 Actual/360 No
64 0 149,876 0.02000 Actual/360 No
67 360 177,174 0.02000 Actual/360 No
68 360 180,444 0.02000 Actual/360 No
69 0 136,495 0.02000 Actual/360 No
72 0 133,681 0.02000 Actual/360 No
79 355 135,138 0.02000 Actual/360 No
81 0 114,367 0.03500 Actual/360 No
83 360 123,788 0.02000 Actual/360 No
84 0 102,973 0.02000 Actual/360 No
89 0 100,374 0.02000 Actual/360 No
90 0 85,200 0.02000 30/360 Yes
91 420 91,627 0.02000 Actual/360 No
95 360 93,224 0.07000 Actual/360 No
96 240 109,028 0.06000 Actual/360 Yes
99 360 86,354 0.02000 Actual/360 No
101 0 70,774 0.07000 Actual/360 No
107 360 81,312 0.02000 Actual/360 No
108 360 75,205 0.02000 Actual/360 No
110 0 63,036 0.07000 Actual/360 No
111 0 65,090 0.02000 Actual/360 No
113 0 58,065 0.02000 Actual/360 No
125 0 48,967 0.02000 30/360 No
131 360 43,578 0.02000 Actual/360 No
132 360 12,783 0.02000 Actual/360 No
138 0 40,383 0.02000 Actual/360 No
140 0 41,015 0.02000 Actual/360 No
143 360 49,250 0.02000 Actual/360 No
147 357 42,522 0.02000 Actual/360 Yes
148 360 41,958 0.02000 Actual/360 No
152 360 40,104 0.02000 Actual/360 No
153 0 34,759 0.02000 Actual/360 No
154 360 42,133 0.02000 Actual/360 No
163 360 36,478 0.02000 Actual/360 No
167 298 39,247 0.02000 Actual/360 No
169 0 31,011 0.08000 Actual/360 No
179 359 31,302 0.06000 Actual/360 No
191 360 24,898 0.02000 Actual/360 No
195 360 23,101 0.02000 Actual/360 No
202 360 22,072 0.02000 Actual/360 No
209 360 18,130 0.02000 Actual/360 Yes
219 0 13,134 0.02000 Actual/360 No
221 360 12,859 0.04000 Actual/360 No
222 300 14,370 0.09000 Actual/360 No
Loan # ARD Step Up (%) Title Type Crossed Loan Originator/Loan Seller
------ --------------- ---------- ------------ ----------------------
1 Fee/Leasehold NCCI
24 Fee NCCI
26 Fee NCCI
30 Fee NCCI
33 Fee B NCCI
34 Fee B NCCI
35 Fee B NCCI
36 Fee B NCCI
37 Fee B NCCI
38 Fee B NCCI
39 Fee B NCCI
40 Fee B NCCI
41 Fee B NCCI
42 Fee B NCCI
43 Fee B NCCI
50 Fee NCCI
53 Fee NCCI
53.01 Fee NCCI
53.02 Fee NCCI
53.03 Fee NCCI
53.04 Fee NCCI
53.05 Fee NCCI
53.06 Fee NCCI
53.07 Fee NCCI
53.08 Fee NCCI
63 Fee NCCI
64 Fee NCCI
67 Leasehold NCCI
68 Fee NCCI
69 Fee NCCI
72 Fee NCCI
79 Fee NCCI
81 Leasehold NCCI
83 Fee NCCI
84 Fee NCCI
89 Fee NCCI
90 Lesser of (a) the maximum rate permitted by the law, or (b) 7.94% Fee NCCI
91 Fee NCCI
95 Fee NCCI
96 Greater of (i) IR +2% or (ii) TR +5% Fee NCCI
99 Fee NCCI
101 Fee NCCI
107 Fee NCCI
108 Fee NCCI
110 Fee NCCI
111 Fee NCCI
113 Fee/Leasehold NCCI
125 Fee NCCI
131 Fee E NCCI
132 Fee E NCCI
138 Fee NCCI
140 Fee NCCI
143 Fee NCCI
147 Greater of IR +2% or TR+1.25%+2% Fee NCCI
148 Fee NCCI
152 Fee NCCI
153 Fee NCCI
154 Fee NCCI
163 Fee NCCI
167 Fee NCCI
169 Fee NCCI
179 Fee NCCI
191 Fee NCCI
195 Fee NCCI
202 Fee NCCI
209 Greater of IR +2% or TR+1.17%+2% Fee NCCI
219 Fee NCCI
221 Fee NCCI
222 Fee NCCI
Loan # Guarantor
------ ---------
1 Coconut Point Town Center, LLC
24 WALF, LLC
26 Xxxxx X. Xxxxxxxx
30 JPI Multifamily Investments, L.P.
33 J.K. Properties, Inc.
34 J.K. Properties, Inc.
35 J.K. Properties, Inc.
36 J.K. Properties, Inc.
37 J.K. Properties, Inc.
38 J.K. Properties, Inc.
39 Woodman Realty, Inc.
40 J.K. Properties, Inc.
41 J.K. Properties, Inc.
42 J.K. Properties, Inc.
43 J.K. Properties, Inc.
50 Xxxxxx Xxxxxxxxx, Xxxxxx X. Xxxxx
53 Xxxxx X. Xxxxx, Xxxxxx Xxxxx
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 Xxxx Xxxxxxxxxx , Xxxxx Xxxx Xxxxxxxxxx
64 Xxxxxx X. Xxxxxxxxx
67 Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxxx
68 Xxxxxx Xxxx
69 Shea and Tatum Associates Limited Partnership
72 Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx
79 J.K. Properties, Inc.
81 Xxx Xxxxx Siam, Xxxxxx Xxxxxxx
83 Xxxx X'Xxxxx-Xxxxxx, Xxxx Xx Xxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxx X.X. Xxxxxx, Xxxxx X. Xxxx, Xxxxx X. Xxxx, Xxxxx
X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx Xxx Xxxxxx
84 Xxxxx X. Xxxxxxx, Xxxxxxx Xxxxxx
89 Xxxx Xxxxxx, Xxxxx Xxxxxxxxx
90 Inland Real Estate Exchange Corporation
91 W Hemet Holdings LLC
95 Xxxxx X. Xxxxxx, Touchmark Living Centers, Inc.
96 Xxxx Xxxxxx
99 Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxx
101 Xxxx Xxxxxxxxxx, Xxxxx Xxxx Xxxxxxxxxx
107 Xxxx Xxxxxxxx, Xxxx Xxxxx
108 Xxxxxx X. Xxxxxxxx
110 Xxxx Xxxxxxxxxx, Xxxxx Xxxx Xxxxxxxxxx
111 Xxxx X. Good, Xxxxxxx X. Good, Xxxxx X. Way, Xxxxxx X. Way
113 Xxxxx X. Xxxxxxxx
125 MB Rockford State, L.L.C., Minto Builders (Florida), Inc.
131 Xxxxxx X. Xxxxxx
132 Xxxxxx X. Xxxxxx
138 Xxxxxxx X. Xxxxxxxxx
000 Xxxxx XxXxxx, Xxxxxx Xxxxx
143 Xxx X. Xxxxxxxxx
147 Xxxxx X. Xxxxx
148 Xxxx Xxxxxxxx, Xxxx Xxxxx
152 Xxxxx Xxxxxxx, Xxxxxxxx Fine, Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxx Xxxx
153 Xxxxxxx X. Xxxxxxxxx
154 Xxxxx Xxxxxxxxx
163 Xxxx Xxxxxxxx, Xxxx Xxxxx
167 Xxxx Xxxxxx, Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxx
179 Xxxxxxxx Xxx
191 Xxxx Xxxxxxxx, Xxxx Xxxxx
195 Xxxx Xxxxxxxx, Xxxx Xxxxx
000 Xxxxxxxx Xxxx Co-op, Inc.
000 Xxxx X. Xxxxx
000 Xxx X. Xxxxxxxxx
221 Xxxxxxx X. Xxxxxxxxx
222 Xxxxxxx X. Xxxxx
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve
------ ---------------- --------------------- --------------------
1 No 0.00 0.00
24 No 0.00 0.00
26 No 0.00 0.00
30 No 0.00 28,400.00
33 No 0.00 6,875.00
34 No 0.00 25,954.00
35 No 0.00 250.00
36 No 0.00 0.00
37 No 0.00 9,175.00
38 No 0.00 0.00
39 No 0.00 12,700.00
40 No 0.00 7,950.00
41 No 0.00 0.00
42 No 0.00 3,125.00
43 No 0.00 0.00
50 No 0.00 0.00
53 No 200,000.00 91,188.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 No 0.00 9,000.00
64 No 0.00 0.00
67 No 0.00 0.00
68 No 0.00 6,250.00
69 No 0.00 0.00
72 No 0.00 168,000.00
79 No 0.00 0.00
81 No 0.00 0.00
83 No 500,000.00 0.00
84 No 250,000.00 0.00
89 No 0.00 7,125.00
90 No 0.00 0.00
91 No 0.00 0.00
95 No 0.00 0.00
96 No 0.00 0.00
99 No 0.00 0.00
101 No 0.00 0.00
107 No 0.00 0.00
108 No 200,400.48 0.00
110 No 0.00 0.00
111 No 0.00 16,875.00
113 No 400,000.00 0.00
125 No 0.00 0.00
131 No 0.00 28,500.00
132 No 0.00 17,408.75
138 No 30,000.00 0.00
140 No 0.00 0.00
143 No 0.00 0.00
147 No 12,105.00 0.00
148 No 0.00 0.00
152 No 0.00 10,875.00
153 No 7,500.00 0.00
154 No 1,480,000.00 0.00
163 No 0.00 0.00
167 No 0.00 5,625.00
169 No 0.00 16,500.00
179 No 0.00 0.00
191 No 0.00 0.00
195 No 0.00 0.00
202 No 0.00 0.00
209 No 0.00 0.00
219 No 0.00 0.00
221 No 0.00 0.00
222 No 0.00 0.00
Loan # Upfront Envir. Reserve Upfront TI/LC Reserve Upfront RE Tax Reserve Upfront Ins. Reserve
------ ---------------------- --------------------- ---------------------- --------------------
1 0.00 0.00 0.00 0.00
24 200,000.00 7,132,087.00 128,083.28 39,601.67
26 0.00 847,544.00 271,495.96 167,752.75
30 0.00 0.00 30,204.58 0.00
33 0.00 0.00 32,029.95 5,278.33
34 0.00 0.00 19,125.64 4,313.33
35 0.00 0.00 30,825.93 2,237.00
36 0.00 0.00 14,610.70 2,501.33
37 0.00 0.00 17,765.62 1,436.67
38 0.00 0.00 14,537.24 934.00
39 0.00 0.00 11,108.72 1,647.00
40 0.00 0.00 7,363.46 1,187.33
41 0.00 0.00 9,272.43 1,740.00
42 0.00 0.00 6,830.12 1,011.00
43 0.00 0.00 66,338.51 18,057.42
50 0.00 0.00 0.00 0.00
53 25,625.00 0.00 71,295.92 0.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 0.00 0.00 20,517.00 3,960.00
64 0.00 0.00 69,795.90 23,048.28
67 0.00 0.00 0.00 0.00
68 12,500.00 0.00 0.00 0.00
69 0.00 0.00 0.00 0.00
72 50,000.00 0.00 100,220.40 12,566.67
79 0.00 0.00 123,145.90 21,617.33
81 0.00 200,000.00 12,534.78 16,629.07
83 0.00 0.00 74,427.25 80,395.47
84 0.00 535,940.00 4,204.51 20,788.50
89 0.00 0.00 60,120.78 15,261.67
90 0.00 0.00 0.00 0.00
91 0.00 67,000.00 7,844.03 12,318.75
95 0.00 200,000.00 44,908.89 70,000.00
96 0.00 300,000.00 55,035.83 18,900.44
99 0.00 0.00 49,250.00 16,377.99
101 0.00 0.00 9,497.00 2,109.00
107 0.00 0.00 105,747.69 9,933.00
108 0.00 0.00 43,803.50 41,250.00
110 0.00 0.00 7,631.00 2,312.00
111 0.00 60,038.12 45,468.92 6,033.25
113 2,188.00 600,000.00 21,138.24 39,042.85
125 0.00 0.00 0.00 0.00
131 21,250.00 0.00 151,819.36 34,846.00
132 0.00 0.00 59,663.20 7,376.00
138 0.00 125,000.00 21,591.40 6,312.27
140 0.00 0.00 64,183.96 3,437.00
143 0.00 0.00 12,622.62 2,160.97
147 0.00 0.00 0.00 0.00
148 0.00 0.00 32,194.80 8,122.50
152 0.00 0.00 25,741.36 11,325.67
153 0.00 35,000.00 18,790.47 4,199.22
154 0.00 0.00 0.00 4,148.00
163 0.00 0.00 28,095.43 4,511.33
167 0.00 0.00 4,565.34 4,560.33
169 6,250.00 0.00 39,077.77 4,108.30
179 0.00 0.00 0.00 2,446.26
191 0.00 0.00 18,278.66 3,103.33
195 0.00 0.00 22,439.95 3,167.50
202 0.00 0.00 12,131.84 1,673.33
209 0.00 460.83 0.00 0.00
219 0.00 0.00 18,136.25 904.33
221 0.00 0.00 7,951.46 0.00
222 0.00 0.00 8,240.29 7,439.33
Loan # Upfront Other Reserve Monthly Capex Reserve Monthly Envir. Reserve
------ --------------------- --------------------- ----------------------
1 0.00 0.00 0.00
24 9,416,000.00 2320.50 0.00
26 0.00 6523.83 0.00
30 0.00 8333.33 0.00
33 0.00 4583.33 0.00
34 0.00 2916.67 0.00
35 0.00 2083.33 0.00
36 0.00 1333.33 0.00
37 0.00 1187.50 0.00
38 0.00 563.71 0.00
39 0.00 1166.67 0.00
40 0.00 916.67 0.00
41 0.00 833.33 0.00
42 0.00 750.00 0.00
43 0.00 2645.83 0.00
50 0.00 0.00 0.00
53 580,000.00 0.00 0.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 560,000.00 6458.33 0.00
64 0.00 5200.00 0.00
67 0.00 49651.00 0.00
68 0.00 0.00 0.00
69 0.00 0.00 0.00
72 0.00 11000.00 0.00
79 0.00 10250.00 0.00
81 0.00 801.33 0.00
83 795,000.00 0.00 0.00
84 0.00 944.00 0.00
89 1,150,000.00 8025.00 0.00
90 0.00 0.00 0.00
91 0.00 733.00 0.00
95 247,900.00 1400.25 0.00
96 105,847.65 2000.00 0.00
99 0.00 4800.00 0.00
101 495,000.00 3666.67 0.00
107 547,553.00 8229.17 0.00
108 0.00 0.00 0.00
110 310,000.00 5166.67 0.00
111 10,240.01 1661.54 0.00
113 185,000.00 0.00 0.00
125 0.00 0.00 0.00
131 0.00 4208.33 0.00
132 0.00 2541.67 0.00
138 109,720.00 0.00 0.00
140 0.00 0.00 0.00
143 48,282.06 0.00 0.00
147 42,521.72 0.00 0.00
148 0.00 3125.58 0.00
152 0.00 4250.00 0.00
153 0.00 0.00 0.00
154 0.00 0.00 0.00
163 0.00 3250.00 0.00
167 0.00 5785.33 0.00
169 11,975.00 666.67 0.00
179 0.00 1453.54 0.00
191 0.00 2333.00 0.00
195 0.00 2697.92 0.00
202 112,800.00 0.00 0.00
209 0.00 138.25 0.00
219 0.00 0.00 0.00
221 0.00 471.25 0.00
222 0.00 3464.70 0.00
Loan # Monthly TI/LC Reserve Monthly RE Tax Reserve Monthly Ins. Reserve
------ --------------------- ---------------------- --------------------
1 0.00 0.00 0.00
24 23205.08 32020.82 7920.33
26 0.00 67873.99 15250.25
30 0.00 30204.58 0.00
33 0.00 5338.33 1319.58
34 0.00 3187.61 1078.33
35 0.00 5137.66 559.25
36 0.00 2435.12 625.31
37 0.00 2960.94 359.17
38 0.00 2422.87 233.50
39 0.00 1851.46 411.75
40 0.00 1227.25 296.83
41 0.00 1545.41 435.00
42 0.00 1138.35 252.75
43 0.00 6633.85 1641.58
50 0.00 0.00 0.00
53 0.00 35647.96 13788.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 0.00 20517.00 3960.00
64 0.00 23265.30 2560.92
67 0.00 0.00 0.00
68 0.00 0.00 0.00
69 0.00 0.00 0.00
72 0.00 50110.20 12566.67
79 0.00 20524.32 5404.33
81 5342.17 6267.39 4935.23
83 0.00 24809.08 8039.55
84 5035.00 4204.51 2309.83
89 0.00 15030.19 7630.83
90 0.00 0.00 0.00
91 0.00 2614.68 2463.75
95 9335.25 22454.45 5833.33
96 12500.00 18345.28 1890.04
99 0.00 9850.00 5459.33
101 0.00 9497.00 2109.00
107 0.00 26436.92 4966.50
108 0.00 14601.17 3750.00
110 0.00 7631.00 2312.00
111 6000.00 11367.23 2011.08
113 0.00 10569.12 3549.35
125 0.00 0.00 0.00
131 0.00 18977.42 4355.75
132 0.00 7457.90 922.00
138 0.00 4318.28 901.75
140 0.00 10697.33 1145.67
143 0.00 4207.54 1080.49
147 0.00 0.00 0.00
148 0.00 8048.70 1624.50
152 0.00 12870.68 5662.83
153 0.00 3131.75 524.90
154 0.00 8583.33 2074.00
163 0.00 7023.86 2255.67
167 0.00 4565.34 2280.17
169 0.00 6512.96 1583.00
179 106.92 6124.30 1223.13
191 0.00 4569.67 1551.67
195 0.00 5609.99 1583.75
202 0.00 6065.92 1673.83
209 460.83 0.00 0.00
219 0.00 3627.25 452.17
221 1625.00 2650.49 0.00
222 0.00 2060.07 929.92
Loan # Monthly Other Reserve Grace Period Lockbox In-place Property Type
------ --------------------- ------------ ---------------- -------------
1 0.00 0 Yes Retail
24 0.00 0 No Retail
26 0.00 0 No Office
30 0.00 0 Yes Multifamily
33 0.00 0 No Multifamily
34 0.00 0 No Multifamily
35 0.00 0 No Multifamily
36 0.00 0 No Multifamily
37 0.00 0 No Multifamily
38 0.00 0 No Office
39 0.00 0 No Multifamily
40 0.00 0 No Multifamily
41 0.00 0 No Multifamily
42 0.00 0 No Multifamily
43 0.00 0 No Multifamily
50 0.00 0 Yes Office
53 0.00 0 Yes Multifamily
53.01 0.00 Multifamily
53.02 0.00 Multifamily
53.03 0.00 Multifamily
53.04 0.00 Multifamily
53.05 0.00 Multifamily
53.06 0.00 Multifamily
53.07 0.00 Multifamily
53.08 0.00 Multifamily
63 0.00 0 No Multifamily
64 0.00 0 No Multifamily
67 0.00 0 No Hotel
68 0.00 0 No Hotel
69 0.00 0 Yes Retail
72 0.00 0 Yes Multifamily
79 0.00 0 No Multifamily
81 0.00 0 Yes Retail
83 0.00 0 No Multifamily
84 0.00 0 No Mixed Use
89 0.00 0 Yes Multifamily
90 0.00 0 No Office
91 0.00 0 Yes Retail
95 0.00 0 Yes Office
96 0.00 0 Yes Office
99 0.00 0 No Multifamily
101 0.00 0 Yes Multifamily
107 0.00 0 No Multifamily
108 0.00 0 No Multifamily
110 0.00 0 Yes Multifamily
111 0.00 0 Yes Office
113 0.00 0 Yes Office
125 0.00 0 No Retail
131 0.00 0 No Multifamily
132 0.00 0 No Multifamily
138 0.00 0 Yes Retail
140 0.00 0 No Manufactured Housing
143 0.00 0 No Manufactured Housing
147 0.00 0 Yes Retail
148 0.00 0 No Multifamily
152 0.00 0 No Multifamily
153 0.00 0 Yes Retail
154 0.00 0 No Hotel
163 0.00 0 No Multifamily
167 0.00 0 Yes Hotel
169 0.00 0 No Multifamily
179 0.00 0 No Multifamily
191 0.00 0 No Multifamily
195 0.00 0 No Multifamily
202 0.00 0 No Manufactured Housing
209 0.00 0 Yes Retail
219 0.00 0 No Manufactured Housing
221 0.00 0 No Retail
222 0.00 10 No Hotel
Loan # Defeasance Permitted Interest Accrual Period Loan Group Final Maturity Date
------ -------------------- ----------------------- ---------- -------------------
1 Yes Actual/360 1
24 Yes Actual/360 1
26 No Actual/360 1
30 Yes Actual/360 3
33 Yes Actual/360 1
34 Yes Actual/360 1
35 Yes Actual/360 1
36 Yes Actual/360 1
37 Yes Actual/360 1
38 Yes Actual/360 1
39 Yes Actual/360 1
40 Yes Actual/360 1
41 Yes Actual/360 1
42 Yes Actual/360 1
43 Yes Actual/360 1
50 Yes Actual/360 3
53 Yes Actual/360 3
53.01 3
53.02 3
53.03 3
53.04 3
53.05 3
53.06 3
53.07 3
53.08 3
63 Yes Actual/360 2
64 Yes Actual/360 2
67 Yes Actual/360 1
68 Yes Actual/360 3
69 Yes Actual/360 3
72 Yes Actual/360 2
79 Yes Actual/360 2
81 Yes Actual/360 1
83 Yes Actual/360 2
84 Yes Actual/360 3
89 No Actual/360 3
90 No 30/360 1 02/11/37
91 Yes Actual/360 1
95 Yes Actual/360 1
96 Yes Actual/360 1 02/11/27
99 Yes Actual/360 2
101 Yes Actual/360 2
107 Yes Actual/360 2
108 Yes Actual/360 2
110 Yes Actual/360 2
111 Yes Actual/360 3
113 No Actual/360 1
125 No 30/360 3
131 Yes Actual/360 2
132 Yes Actual/360 2
138 Yes Actual/360 3
140 Yes Actual/360 3
143 Yes Actual/360 3
147 Yes Actual/360 1 12/11/36
148 Yes Actual/360 2
152 Yes Actual/360 3
153 Yes Actual/360 3
154 Yes Actual/360 3
163 Yes Actual/360 2
167 Yes Actual/360 1
169 Yes Actual/360 2
179 Yes Actual/360 2
191 Yes Actual/360 2
195 Yes Actual/360 2
202 Yes Actual/360 2
209 Yes Actual/360 1 03/11/37
219 Yes Actual/360 3
221 Yes Actual/360 1
222 Yes Actual/360 1
Loan # Remaining Amortization Term for Balloon Loans
------ ---------------------------------------------
1
24
26
30
33 360
34 360
35 360
36 360
37 360
38 360
39 360
40 360
41 360
42 360
43 360
50
53
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63
64
67 360
68 360
69
72
79 360
81
83 360
84
89
90
91 420
95 360
96 240
99 360
101
107 360
108 360
110
111
113
125
131 360
132 360
138
140
143 360
147 360
148 360
152 360
153
154 360
163 360
167 300
169
179 360
191 360
195 360
202 360
209 360
219
221 360
222 300
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) 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 Closing Date between the applicable 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 Closing Date between the
applicable 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 actual 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.
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
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 actual 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) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. 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 recordation
of the Mortgage or the Assignment of Leases and Rents or 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 or otherwise approved 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.
(9) The related Assignment of Mortgage and the related assignment of
the Assignment of Leases and Rents 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 and Rents 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 and Rents, 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 intentional material misrepresentation, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (iii)
either (x) any act of actual waste by or (y) damage or destruction to the
Mortgaged Property caused by the acts or omissions of the borrower, its agents,
employees or contractors, 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 or one form of
action 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.
(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 may be 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 and 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) Except by a written instrument that has been delivered to the
Purchaser as a part of the related Mortgage File with respect to any immaterial
releases of the Mortgaged Property, 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 to
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 proceeding or power of
sale proceeding has been initiated under the terms of the related Mortgage Loan
documents. 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 (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 materially 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 and regulations, and the Seller has complied with all material
requirements pertaining to the origination 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, the related Mortgaged Property was, 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 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, enjoyment, 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) 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 actual
knowledge, such Mortgaged Property has not been damaged by fire, wind or other
casualty or physical condition that would materially and adversely affect its
value as security for the related Mortgage Loan (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.
(20) 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) satisfy the following conditions:
(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 or such other agreement received by the
originator of the Mortgage Loan from the ground lessor 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 or such other agreement received by the
originator of the Mortgage Loan from the ground lessor 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 mortgage on the fee interest which is
assignable to or for the benefit of the related lessee and the related
mortgagee;
(c) such Ground Lease or other agreement 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 in existence as of the Closing Date, 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 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 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 be 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 maturity date (or, in the case of an ARD Loan, the final maturity date)
of the related Mortgage Loan. 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 (1) any notice of non payment of premiums that
has not been cured in a timely manner by the related Mortgagor or (2) any notice
of cancellation or termination of such Insurance Policies. 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 providing (a) coverage in the amount of the lesser of full
replacement cost of such Mortgaged Property and the outstanding principal
balance of the related Mortgage Loan (subject to customary deductibles) for
losses sustained by fire and against loss or damage by other risks and hazards
covered by a standard extended coverage insurance policy providing "special"
form coverage in an amount sufficient to prevent the Mortgagor from being deemed
a co-insurer and to provide coverage on a full replacement cost basis of such
Mortgaged Property (in some cases exclusive of excavations, underground
utilities, foundations and footings) with an agreed amount 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 (i) 12 months of operations or (ii) 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 less
than 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. 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-:V" from A.M.
Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, 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 return period of not less
than 100 years, 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-:V" by A.M.
Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, 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 practices used by the Seller or, to its knowledge,
any prior holder of the related Mortgage Note with respect to such Mortgage Loan
have been in all material respects legal and have met customary industry
standards and since origination, the Mortgage Loan has been serviced in all
material respects in a legal manner in conformance with 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 purposes), 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, in the aggregate, more
than 5% of the aggregate outstanding principal amount of all the mortgage loans
included in the Trust Fund have 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 related 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 (i) at the date the Mortgage Loan was
originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (ii) 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 (A) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (B) 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 sub-clauses (a)(i) and (a)(ii) of this clause (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 (x) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (y) satisfies the provisions of
either sub-clause (a)(i) above (substituting the date of the last such
modification for the date the Mortgage Loan was originated) or sub-clause
(a)(ii), 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) Each of the Mortgage Loans contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without 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 transfers subject to the Mortgage Loan holder's approval of
transferee, transfers of worn out or obsolete furnishings, fixtures, or
equipment promptly replaced with property of equivalent value and functionality,
transfers of leases entered into in accordance with the Mortgage Loan documents,
transfers to affiliates, transfers to family members for estate planning
purposes, transfers among existing members, partners or shareholders in
Mortgagors 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 or Mortgage Note requires the Mortgagor to pay all
reasonable out-of-pocket fees and expenses associated with securing the consent
or approval of the holder of the Mortgage for a waiver of a "due on sale" or
"due on encumbrance" clause or a defeasance provision. 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 or provides (i) the replacement
collateral consist of U.S. "government securities," within the meaning of
Treasury Regulations Section 1.860 G-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 clause (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 any
Mortgage Loan with an outstanding principal balance as of the Cut-off Date of
$40,000,000 or greater, (a) a REMIC opinion and (b) 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 not less
than 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) Any material non-conformity with applicable zoning laws
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to the full extent of the
use or structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts consistent with the standards
utilized by the Seller.
(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) If the related Mortgage or other Mortgage Loan documents provide
for a grace period for delinquent Monthly Payments, such grace period is no
longer than ten (10) days from the applicable payment date or, with respect to
acceleration or the commencement of the accrual of default interest under any
Mortgage Loan, five (5) days after notice to the Mortgagor of default.
(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) 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 or, 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 a "standard extended coverage" 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.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
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 a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a 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 applicable Master
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 other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
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
is 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 an 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.
EXHIBIT C
JPMCC 2007-LDP10
Exceptions to Representations for Nomura Loans
Representation # (4)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of
Fontana, which allows annual CPI increases of rents and pass-through
expenses.
Representation # (6)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of Fontana,
which allows annual CPI increases of rents and pass-through expenses.
Representation # (8)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of Fontana,
which allows annual CPI increases of rents and pass-through expenses.
Representation # (9)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Stonegate at Eagles Landing Mortgagor has entered into an operating agreement with an affiliated
entity as tenant. The tenant operates the related mortgaged property
and has a right to the gross revenues. Separate assignments were
entered into y the mortgagor and tenant. The operating lease is
subordinate by its terms.
Representation # (10(a))
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Spring Creek Apartments Liability for each tenant in common is limited to their contribution.
(Austin), Northwest Crossing,
Skylark MHP, Sierra Center
Mammoth Lakes, Sierra Mobile
Estates, Stonegate at Eagles
Landing, College Suites -
Murfreesboro, TN, Marketplace
at Kapolei
State Street Market; AT&T Only the mortgagor is liable for a breach of the environmental
Pewaukee covenants. Liability does not go to actual waste but to acts related
to the removal or disposal of any portion of the property after an
event of default.
Coconut Point, Hemet Village, Only the mortgagor is liable for the carveouts.
Paradise Park ROC
The Orchard at Saddleback Only the mortgagor is liable for the environmental carveouts. There
is no entity or warm body on the remaining carveouts.
Paradise Village Gateway There is no entity or warm body on the carveouts.
Marriott - Huntsville An act, omission or event described as an event of default in the loan
documents relating to one of Xxxxxxx Xxxxxx or Xxxxxx Xxxx shall not
constitute an event of default so long as i) there is no other event of
default, ii) such act, omission or event does not have a material
adverse effect on the property and iii) the other indemnitor executes
such documents as Lender may reasonably request to reaffirm his
obligations. The actions of one indemnitor related to bankruptcy,
collusion or interference shall not result in liability for the other
indemnitor. All indemnities expire four years after loan payoff.
Representation # (11)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Coconut Point Pursuant to the terms of the mortgage loan documents, the air rights
have been released.
Representation # (12)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Xxxx Boulevard Apartments, Properties may be released from the pool two years from the date of
Twin Oaks Apartments securitization based on final allocated loan amounts, subject to
110% defeasance and maintaining a minimum 1.25x DSCR, based on a 30
year amortization, based on Lender's underwritten Net Operating
Income. Additionally, there must be a minimum LTV of 75% on the
remaining property.
2016 Riverside Office, Property(ies) may be released from the pool two years from
Xxxxxxxxx/Xxxx Xxxxx, Xxxxxxx securitization based on final allocated loan amounts subject to 110%
Park, Crosswinds, Mountain defeasance and maintaining a 1.20x DSCR and 80% LTV on the remaining
Gate, Mountain View properties in that sub-pool or 100% defeasance and maintaining a
Townhouse, North Pointe - 1.25x DSCR and 75% LTV on the remaining properties in that pool.
Riverside, Xxxxxxx Pointe,
Sierra Springs, The Property(ies) may be released from the pool two years from closing,
Victorian, West View (West pursuant to an "ARMS Length Transaction", with no event of default, so
Lake) long as the remaining properties maintain not less than 1.20x DSCR and
LTV of not greater than 80%, subject to Right to Transfer provision
within the loan documents.
Paradise Park ROC The borrower is permitted to partially prepay up to 10% of the balance
of the Loan (over the life thereof) without penalty from the proceeds
of sales of additional shares of Borrower.
Lembi Multifamily Portfolio Lender will allow for the individual release of the properties after
the Lockout Period pursuant to the following conditions: (i) no event
of default, (ii) paydown of the Loan proceeds at 120% of the allocated
loan amount attributable to the released collateral, (iii) payment of
the associated Defeasance penalty, (iv) a DSCR of no less than the
greater of 1.10:1 or the DSCR prior to the partial release, and (v) the
LTV on the remaining collateral must not exceed 85.9%.
Coconut Point Non income producing parcels may be released provided (i) no material
adverse effect, (ii) REMIL opinion and (iii) remaining property
complies with all applicable laws and remains separate tax parcel
Air rights parcel may be released in connection with development of
residential condominiums subject to terms set forth in the loan
agreement
Representation # (16)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Addison at Wyndham Apartments The Borrower is to add 7 parking spaces within 60 days of loan closing
to bring parking into conformity.
Spring Creek Apartments The Borrower is to add 18 parking spaces within 30 days of loan closing
to bring parking into conformity.
National Hotel There are 2 open permits (one for a canvas awning installation and
another for installation of a cobble system over an existing concrete
drive). The estimated cost to complete such installation is $10,000.
Accordingly, Borrower has established with the Lender a reserve in the
amount of $12,500. Borrower covenants and agrees to satisfy the Permit
Requirements within 60 days of loan closing.
Rite Aid - Washington, PA, A copy of the certificate of occupancy was not available. Per a
Wine Valley Inn zoning report the absence of a certification of occupancy on file is
not considered a violation.
Lembi Multifamily Portfolio At 0000 Xxxxx Xxxxxx, there are 6 "illegal" units (units in excess of
the number permitted in the certificate of occupancy). Recourse
carveouts were taken for any losses associated with the illegal units.
Representation # (17)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Northwest Crossing The property is part, but not all of a single tax lot. Borrower has
escrowed 125% of the estimated 2007 tax amount allocated to the
additional portion of the property ("Parcel Two"). Borrower has agreed
to cause all taxing authorities to treat the Property and Parcel Two as
separate tax parcels, and has indemnified Lender against any cost or
loss related to the failure of Borrower to properly subdivide the
Property and Parcel Two
Representation # (18)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Wine Valley Inn A few of the buildings encroach upon easements. Borrower provided
recourse carveout to the extent of losses in the event that the owner
of the easements compels removal of any portion of the improvements.
Representation # (20)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
One South King The ground lease generally does not conform with the representations
and warranties. The ground lessor is a borrower under the mortgage,
note and other loan documents and the ground lease terminates upon
foreclosure.
000 Xxxx Xxxx Xxxxxx A 50 year ground lease effective in 1968 and expiring in 2018 covering
the parking lot of the property is filed of record. After investigating
the chain of title and history of the property, it was determined that
the ground lease was of no effect. Title coverage was provided.
Representation # (19(a))
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
State Street Market An immediate repair reserve was not collected at closing; however, the
Mortgagor is required to repair all items that are life safety or code
violations within nine months of closing. If Mortgagor fails to repair
items that are life safety, code violations or are greater than 0.10%
of the loan amount within nine months of closing, the Mortgagor is
required to escrow funds equivalent to the related Deferred Maintenance
costs identified by Engineer.
000 Xxxx Xxxx Xxxxxx, Quality An escrow for immediate repairs was not taken at closing.
Inn and Suites - Durham, The
Marketplace at Xxxxxxx
Xxxxxxxxxxxxxx # (00)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
All Nomura Loans Nomura generally requires an AM Best rating of A:IX.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
000 Xxxx Xxxx Xxxxxx, Xxxxxx Tenant may self insure.
Furniture Retail Center -
Bakersfield, 0000 Xxxxxxxxx
Xxxxxx
Xxxx Xxx - Xxxxxxxxxx, XX Tenant may self insure. Borrower may elect to not obtain loss of
business income or terrorism insurance so longs as Borrower and
Guarantor of the loan each remain personally liable for losses to
Lender.
National Hotel Windstorm Insurance will not be required so long as (i) Borrower and
Guarantor shall be personally liable for any Losses to Lender resulting
from a lack of windstorm coverage, and (ii) Borrower and/or Guarantor
maintains cash or marketable securities of at least $10,000,000 in a
financial institution of Borrower's choice in the United States in an
account identified to Lender and which cannot be liquidated without
Lender's consent.
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
Coconut Point If insurance is provided by a syndicate of five or more insurers, 40%
of the coverage is permitted to be from BBB rated insurers.
Representation # (24)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
2016 Riverside Office, There is ongoing litigation within the Xxxxxx family regarding
Xxxxxxxxx/Xxxx Xxxxx, Xxxxxxx ownership of many of the properties owned by Xxxxxx Xxxxxx, H.K.
Park, Crosswinds, Mountain Realty, and J.K. Properties. This case is currently 3 1/2 years old.
Gate, Mountain View It is anticipated that the matter will be set to proceed to trial
Townhouse, North Pointe - within 9 to 12 months. Further, upon conclusion of the trial, it is
Riverside, Xxxxxxx Pointe, anticipated that the unsuccessful party will appeal the judgment
Sierra Springs, The which appeal could extend the matter for years.
Victorian, West View (West
Lake) and The Hamptons
Lembi Multifamily Portfolio The sponsor of the related borrowers and affiliated entities are
currently the subject of various lawsuits, including lawsuits by the
City of San Francisco, which allege, among other things, that the
sponsor and its principals have, in their capacity as landlords,
consistently engaged in illegal practices with respect to multi-family
dwellings they own. There can be no assurance that these lawsuits and
the negative publicity generated by them and the actions of the sponsor
and its affiliates will not have a negative effect on the operations of
the sponsor and on the mortgaged property securing such Loan.
Representation # (32)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Pierre Suites Borrower may incur subordinate financing evidence by a second lien on
the property or mezzanine debt in a form of pledge of the equity
interest of the borrower (it being understood that preferred equity
shall be permitted and is not considered subordinate financing). The
secondary financing evidence by a second lien on the property shall be
allowed up to value of 75% and a minimum aggregate debt service
coverage ratio of 1.20x on an interest only basis.
State Street Market A prohibited transfer does not include a) any issuance, sale or
transfer of interests in Sole Member or any successor entity resulting
from any merger permitted hereunder, b) a transfer by devise or descent
or by operation of law upon the death of a member or partner of
Mortgagor, or c) the merger of the Sole Member with any of the
following entities: Inland Retail Real Estate Trust, Inc., a Maryland
corporation, Inland Real Estate Investment Corporation, a Delaware
corporation, Inland American Real Estate Trust, Inc., a Maryland
Corporation, any other real estate investment trust sponsored by Inland
Real Estate Investment Corporation, or any other entity composed
entirely of any of the foregoing by merger. On or after the Closing
Date, Mortgagor may transfer greater than 49% of the direct or indirect
interests in the Mortgagor, provided that the transfer is to a
Qualified Entity, as defined in the loan documents
AT&T Pewaukee Within 24 months of closing the Borrower is permitted to transfer
interests to a tenant in common structure. Additionally, transfers are
allowed to permitted Inland entities, affiliates and to Accredited
Investors.
California Senior Plaza Future Mezzanine Debt Permitted - After 12 months from closing and
before 24 months from maturity, DSCR >= 1.15, LTV <= 80%
Corporate Fountains Future Mezzanine debt secured by interest in the borrower permitted
provided no event of default. The debt shall only result in the event
of the failure of Mezzanine Borrower to make a capital call.
Borrower may, upon prior written notice to Lender, transfer interests
between The Xxxxxxxx Fund IV, LLC and GWR Tempe, LLC.
Tanque Verde Apartments Upon prior written notice to Lender, the following transfers are
permitted: (i) any transfer of membership interests in Borrower by and
between PCCP CS Tanque Verde, LLC and LANDCO Tanque Verde, LLC, whether
or not pursuant to the organizational documents of Borrower or
otherwise; (ii) any sales, transfers or conveyances by PacificCal, LLC,
a Delaware limited liability company (together with its permitted
successors), of its direct and indirect interest in the managing member
of the Borrower to any direct or indirect subsidiary or affiliate of
either Pacific Coast Capital Partners, LLC or The California State
Teachers' Retirement System; or (iii) any transfer, sale or conveyance
by PacificCal of the PacificCal Interest to a REIT so long as Pacific
Coast Capital Partners, LLC or The California State Teachers'
Retirement System or any direct or indirect subsidiary of either of the
foregoing, or an affiliate of any of the foregoing, retains day to day
control of the PacificCal Interest.
Davies Pacific Center Subject to meeting certain conditions, transfers are permitted to a
Qualified Transferee, as defined in the related mortgage loan
documents.
After the second anniversary of the Securitization of the loan, the
loan borrower's equity owners may obtain mezzanine financing subject to
LTV <= 80% based on the then appraisal value of the subject property
and DSCR >= 1.10x.
The Orchard at Saddleback Transfers (which include encumbrances) of up to 49% of the direct or
indirect non-managing membership interests in Borrower are permitted
without Lender consent provided that the persons responsible for the
management and control of Borrower and the Property remain unchanged
following such transfer. Additionally, the following transfers are
permitted without consent: a) substitution pr replacement of the
current managing member where the new managing member is the current
majority member of Borrower b) transfers of interests in the managing
member provided that at least one of the current principals continues
to own 51% and controls and c) transfers of interests in the majority
member provided that at least one of the current principals continues
to own 51% and controls.
College Suites - With respect to the ownership of Investors LLC, an entity which owns
Murfreesboro, TN an interest in any Borrower, may transfer any or all of said interest
in said Borrower to any entity which owns an interest in any other
Borrower without Lender's prior consent.
The sole member of Borrower may, without Lender's consent, transfer or
permit to be transferred its direct or indirect interest in Borrower;
provided that (a) not more than 49% of the membership interests in
Borrower are transferred and (b) those persons responsible for the
management and control of Borrower and the Property remain unchanged
following such transfer.
Coconut Point Transfers permitted to institution with net worth of at least $400
Million and real estate assets of at least $250 Million.
Transfers permitted between Simon and Dillards.
Dillards may transfer its interest to third parties provided Simon or
other qualified transferee is in control.
Sponsor is permitted to incur future mezzanine indebtedness. The loan
servicer will not have discretion to approve of any such indebtedness
so long as (a) the total LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not fall below 1.05x, (c) the
mezzanine lender meets a predetermined definition of "qualified
lender", (d) the mezzanine loan shall be coterminous or mature
subsequent to the mortgage loan and (e) the mezzanine lender shall
enter into a form of inter-creditor agreement.
One South King Subject to meeting certain conditions, transfers are permitted to a
Qualified Transferee, as defined in the related mortgage loan
documents.
Borrower may procure mezzanine debt after the expiration of the Lockout
Period to be secured by the equity interests of the Borrower. The
combined loan-to-value of the existing loan and the mezzanine loan
shall not exceed 70.0%, based on a then current appraisal, and the DSCR
applying Lender's then current underwriting guidelines shall be not
less 1.10 to 1 based on the actual mortgage constant.
Spring Creek Apartments Subject to the satisfaction of the typical requirements for
(Austin), Northwest Crossing, transfers, as more specifically set forth in the related loan
Skylark MHP, Sierra Center documents (e.g. prospective buyer of a TIC interest to be a single
Mammoth Lakes, Sierra Mobile purpose, bankruptcy remote entity), transfers of interest in
Estates, Stonegate at Eagles Mortgagor are permitted to any entity that is party to or will be
Landing, College Suites - party to the related TIC Agreement.
Murfreesboro, TN, Marketplace
at Kapolei
Paradise Village Gateway Transfers of interests to DDR or an affiliate of DDR are permitted
without Lender consent.
Hemet Village The following transfers are permitted: a) to a tenant in common
structure, b) any interests in Grantor as long as there is not a change
in control in Grantor and c) transfers to a Qualified Buyer as defined
in the related mortgage loan documents.
Marriott Huntsville Interests may be transferred between Xxxx Inc. and/or Xxxxxx Xxxx and
Xxxxxx Xxxxxx (or entities controlled by them).
Overland Park Up to $10,000,000 in future secured debt is permitted subject to a
subordination agreement and a 1.50x DSCR on the combined debt. This
funding obligation is held by Nomura Credit & Capital, Inc.
Lembi Multifamily Portfolio The equity interest secure $10,000,000 in mezzanine debt. This loan is
held by Nomura Credit & Capital, Inc.
Pelican Point The equity interest secure $24,049,000 mezzanine debt.
Representation # (35)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Xxxx Boulevard Apartments, Properties may be released from the pool two years from the date of
Twin Oaks Apartments securitization based on final allocated loan amounts, subject to
110% defeasance and maintaining a minimum 1.25x DSCR, based on a 30
year amortization, based on Lender's underwritten Net Operating
Income. Additionally, there must be a minimum LTV of 75% on the
remaining property.
2016 Riverside Office, Property(ies) may be released from the pool two years from
Xxxxxxxxx/Xxxx Xxxxx, Xxxxxxx securitization based on final allocated loan amounts subject to 110%
Park, Crosswinds, Mountain defeasance and maintaining a 1.20x DSCR and 80% LTV on the remaining
Gate, Mountain View properties in that sub-pool or 100% defeasance and maintaining a
Townhouse, North Pointe - 1.25x DSCR and 75% LTV on the remaining properties in that pool.
Riverside, Xxxxxxx Pointe,
Sierra Springs, The Property(ies) may be released from the pool two years from closing,
Victorian, West View (West pursuant to an "ARMS Length Transaction", with no event of default, so
Lake) long as the remaining properties maintain not less than 1.20x DSCR and
LTV of not greater than 80%, subject to Right to Transfer provision
within the loan documents.
Lembi Multifamily Portfolio Lender will allow for the individual release of the properties after
the Lockout Period pursuant to the following conditions: (i) no event
of default, (ii) paydown of the Loan proceeds at 120% of the allocated
loan amount attributable to the released collateral, (iii) payment of
the associated Defeasance penalty, (iv) a DSCR of no less than the
greater of 1.10:1 or the DSCR prior to the partial release, and (v) the
LTV on the remaining collateral must not exceed 85.9%.
Coconut Point Non income producing parcels may be released provided (i) no material
adverse effect, (ii) REMIC opinion and (iii) remaining property
complies with all applicable laws and remains separate tax parcel
Air rights parcel may be released in connection with development of
residential condominiums subject to terms set forth in the loan
agreement.
Representation # (37)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Addison at Wyndham Apartments The Borrower is to add 7 parking spaces within 60 days of loan closing
to bring parking into conformity.
Spring Creek Apartments The Borrower is to add 18 parking spaces within 30 days of loan closing
to bring parking into conformity.
Representation # (38)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Overland Park Up to $10,000,000 in future secured debt is permitted subject to a
subordination agreement and a 1.50x DSCR on the combined debt. This
funding obligation is held by Nomura Credit & Capital, Inc.
Representation # (42)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
000 Xxxx Xxxx Xxxxxx, Xxxxxx Tenant may self insure.
Furniture Retail Center -
Bakersfield, 2016 Riverside
Office
Representation # (44)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
National Hotel Windstorm Insurance will not be required so long as (i) Borrower and
Guarantor shall be personally liable for any Losses to Lender resulting
from a lack of windstorm coverage, and (ii) Borrower and/or Guarantor
maintains cash or marketable securities of at least $10,000,000 in a
financial institution of Borrower's choice in the United States in an
account identified to Lender and which cannot be liquidated without
Lender's consent.
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
000 Xxxx Xxxx Xxxxxx, Xxxxxx Tenant may self insure.
Furniture Retail Center -
Bakersfield, 2016 Riverside
Office
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 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 (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
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. I have examined the information regarding the Mortgage Loans in
the Prospectus, dated March 9, 2007, as supplemented by the Prospectus
Supplement, dated March 26, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the
Private Placement Memorandum, dated March 26, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of the
Class B, Class C, Class D, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificates, and the Residual Private Placement
Memorandum, dated March 26, 2007 (together with the Privately Offered
Certificate Private Placement Memorandum, the "Private Placement Memoranda"),
relating to the offering of the Class R, Class MR and Class LR Certificates, and
nothing has come to my attention that would lead me to believe that 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 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.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of March,
2007.
By:____________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS OBTAINED IN LIEU
OF AN ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH OTHER
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Paragraph 21(b) and (c):
None.
