EXECUTION VERSION
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MORTGAGE LOAN PURCHASE AGREEMENT
between
LASALLE BANK NATIONAL ASSOCIATION
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of February 15, 2007
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 3
2. CONVEYANCE OF MORTGAGE LOANS......................................... 3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER............................................................... 16
6. CLOSING.............................................................. 21
7. CLOSING DOCUMENTS.................................................... 22
8. COSTS................................................................ 25
9. NOTICES.............................................................. 25
10. SEVERABILITY OF PROVISIONS........................................... 25
11. FURTHER ASSURANCES................................................... 25
12. SURVIVAL............................................................. 26
13. GOVERNING LAW........................................................ 26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT......................... 26
15. MISCELLANEOUS........................................................ 26
16. ENTIRE AGREEMENT..................................................... 27
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)........................................................... 18
Agreement.................................................................. 2
Certificate Purchase Agreement............................................. 2
Certificates............................................................... 2
Closing Date............................................................... 3
Collateral Information..................................................... 11
Crossed Mortgage Loans..................................................... 17
Defective Mortgage Loan.................................................... 17
Final Judicial Determination............................................... 20
Indemnification Agreement.................................................. 14
Initial Purchaser.......................................................... 2
Master Servicer............................................................ 2
Material Breach............................................................ 16
Material Document Defect................................................... 16
Memorandum................................................................. 3
MERS....................................................................... 5
Mortgage File.............................................................. 4
Mortgage Loan Schedule..................................................... 3
Mortgage Loans............................................................. 2
Officer's Certificate...................................................... 8
Other Mortgage Loans....................................................... 2
Pooling and Servicing Agreement............................................ 2
Private Certificates....................................................... 2
Prospectus Supplement...................................................... 2
Public Certificates........................................................ 2
Purchaser.................................................................. 2
Repurchased Loan........................................................... 18
Seller..................................................................... 2
Servicing File............................................................. 9
Special Servicer........................................................... 2
Trust...................................................................... 2
Trustee.................................................................... 2
Underwriters............................................................... 2
Underwriting Agreement..................................................... 2
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MORTGAGE LOAN PURCHASE AGREEMENT
(LASALLE LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of February 15,
2007, between LaSalle Bank National Association (the "Seller"), and Xxxxxx
Xxxxxxx Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of February 1, 2007, between Purchaser, as depositor, Capmark Finance
Inc., as master servicer, X.X. Xxxxxx Company, Inc., as special servicer
("Special Servicer"), Xxxxx Fargo Bank, National Association, as trustee and
custodian ("Trustee") and LaSalle Bank National Association, as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans (the "Other Mortgage Loans") to be
purchased by Purchaser, the Trust will issue to the Depositor pass-through
certificates to be known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement. The term "Master
Servicer" as used herein shall mean Capmark Finance Inc. in its capacity as a
master servicer under the Pooling and Servicing Agreement unless otherwise
specified.
The Class A-1, Class A-1A, Class A-2, Class A-3-1, Class A-3-2, Class A-AB,
Class A-4, Class A-4FL, Class A-M, Class A-MFL, Class A-J, Class B, Class C,
Class D, Class E and Class F Certificates (the "Public Certificates") will be
sold by Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated, LaSalle Financial
Services, Inc., Deutsche Bank Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (other than with respect to the Class A-4 Certificates)
(the "Underwriters"), pursuant to an Underwriting Agreement, between Purchaser
and the Underwriters, dated February 15, 2007 (the "Underwriting Agreement"),
and the Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class S, Class T, Class R-I, Class R-II and Class
R-III Certificates (the "Private Certificates") will be sold by Purchaser to
Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial Purchaser,
dated February 15, 2007 (the "Certificate Purchase Agreement"). The Underwriters
will offer the Public Certificates for sale publicly pursuant to a Prospectus
dated February 6, 2007, as supplemented by a Prospectus Supplement dated
February 15, 2007 (together with the Prospectus, the "Prospectus Supplement"),
and the Initial Purchaser will offer the Private Certificates for sale in
transactions exempt from the registration requirements of the Securities Act of
1933 pursuant to a Private Placement Memorandum dated February 15, 2007 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, subject to certain agreements regarding servicing as provided in
the Pooling and Servicing Agreement, sub-servicing agreements in existence as of
the Closing Date and the servicing rights purchase agreement, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to the Mortgage Loans is February 1, 2007. The Mortgage Loans will have
an aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $394,318,700. The sale of the Mortgage Loans shall take place on
February 28, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by Purchaser
for the Mortgage Loans shall equal the amount set forth as such purchase price
on Exhibit 3 hereto. The purchase price shall be paid to Seller by wire transfer
in immediately available funds on the Closing Date.
1.2 On the Closing Date, Purchaser will assign to Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14), and Trustee shall succeed to such right, title and interest in
and to the Mortgage Loans and Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein, all the right, title and interest of Seller,
subject to certain agreements regarding servicing as provided in the Pooling and
Servicing Agreement, sub-servicing agreements in existence as of the Closing
Date and the servicing rights purchase agreement, and with the understanding
that a Servicing Rights Purchase and Sale Agreement, dated February 1, 2007,
will be executed by Seller and Master Servicer, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule as of the Closing Date. The Mortgage
Loan Schedule, as it may be amended from time to time on or prior to the Closing
Date, shall conform to the requirements of this Agreement and the Pooling and
Servicing Agreement. In connection with such transfer and assignment, Seller
shall deliver to or on behalf of Trustee, on behalf of Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause 2.2.1 hereof) for
each Mortgage Loan and on or prior to the fifth Business Day after the Closing
Date, five limited powers of attorney substantially in the form attached hereto
as Exhibit 5 in favor of Trustee, Master Servicer and Special Servicer to
empower Trustee, Master Servicer and, in the event of the failure or incapacity
of Trustee and Master Servicer, Special Servicer, to submit for recording, at
the expense of Seller, any Mortgage Loan documents required to be recorded as
described in the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage Files (so long as original counterparts have previously been delivered
to Trustee). Seller agrees to reasonably
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cooperate with Trustee, Master Servicer and Special Servicer in connection with
any additional powers of attorney or revisions thereto that are requested by
such parties for purposes of such recordation. The parties hereto agree that no
such power of attorney shall be used with respect to any Mortgage Loan by or
under authorization by any party hereto except to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to Seller, but in no event
earlier than 18 months from the Closing Date, and (ii) the date (if any) on
which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. Custodian
shall submit such documents for recording, at Seller's expense, after the
periods set forth above, provided, however, Custodian shall not submit such
assignments for recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its return from
the applicable recording office. In addition, not later than the 30th day
following the Closing Date, Seller shall deliver to or on behalf of Trustee each
of the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions and additional time periods as are permitted by this Section 2)
with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller
acknowledges that the term "without recourse" does not modify the duties of
Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date
are to be held by or on behalf of Trustee in escrow on behalf of Seller at all
times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed, by allonge or on the original Mortgage Note, "Pay to the order of
Xxxxx Fargo Bank, National Association , as Trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11, without
recourse, representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit, with a copy of the Mortgage Note
attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
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2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 90th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (ii) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation, a
certification by the appropriate county recording office where such document is
recorded that such copy is a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for recording information not yet
available if the instrument being recorded has not been returned from the
applicable recording office), signed by the holder of record in blank or in
favor of "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ11," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause Trustee to be
shown as the owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to Special Servicer evidence confirming
that Trustee is shown as the owner on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 90th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and
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complete copy of the original Assignment of Leases submitted for recording,
together with (i) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by
Seller to be a true and complete copy of the original assignment submitted for
recording, and (ii) an original assignment of such Assignment of Leases, in
recordable form, signed by the holder of record in favor of "Xxxxx Fargo Bank,
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ11," which assignment may be
effected in the related Assignment of Mortgage, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of Trustee will be required to be recorded or
delivered and instead, Seller shall take all actions as are necessary to cause
Trustee to be shown as the owner of the related Mortgage on the record of MERS
for purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS and shall deliver to Special Servicer evidence
confirming that Trustee is shown as the owner on the record of MERS;
2.2.7 The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report with an original Title Insurance Policy to follow
within 180 days of the Closing Date or an agreement to provide any of the
foregoing pursuant to binding escrow instructions executed by the title company
or its authorized agent, with the original title policy to follow within 180
days of the Closing Date;
2.2.9 (A) Copies of UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements assigning such UCC
financing statements to Trustee executed and delivered in connection with the
Mortgage Loan, provided, if the related Mortgage has been recorded in the name
of MERS or its designee, no such financing statements will be required to be
recorded or delivered and instead, Seller shall take all actions as are
necessary to cause Trustee to be shown as the owner of the related Mortgage on
the record of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS and shall deliver to
Special Servicer evidence confirming that Trustee is shown as the owner on the
record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and intercreditor
agreements (including, without limitation, any Intercreditor Agreement, any
Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan Pair
Intercreditor Agreement, and a copy (that is, not the original) of the mortgage
note evidencing the related B Note), if any, related to any Mortgage Loan;
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2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to Trustee on
behalf of the Trust with a copy to be held by Primary Servicer (or Master
Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement or (B) the original of each letter
of credit, if any, constituting additional collateral for such Mortgage Loan
(other than letters of credit representing tenant security deposits which have
been collaterally assigned to the lender), which shall be held by Primary
Servicer (or Master Servicer) on behalf of Trustee, with a copy to be held by
Trustee, and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement and the Primary Servicing Agreement (it being understood that Seller
has agreed (a) that the proceeds of such letter of credit belong to the Trust,
(b) to notify, on or before the Closing Date, the bank issuing the letter of
credit that the letter of credit and the proceeds thereof belong to the Trust,
and to use reasonable efforts to obtain within 30 days (but in any event to
obtain within 90 days) following the Closing Date, an acknowledgement thereof by
the bank (with a copy of such acknowledgement to be sent to Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of Seller to
assign the letter of credit hereunder including the right and power to draw on
the letter of credit). In the case of clause (B) above, the Primary Servicer (or
Master Servicer) acknowledges that any letter of credit held by it shall be held
in its capacity as agent of the Trust, and if Primary Servicer (or Master
Servicer) sells its rights to service the applicable Mortgage Loan, Primary
Servicer (or Master Servicer) has agreed to assign the applicable letter of
credit to the Trust or at the direction of Special Servicer to such party as
Special Servicer may instruct, in each case, at the expense of Primary Servicer
(or Master Servicer). Primary Servicer (or Master Servicer) has agreed to
indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
2.2.13 The original or a copy of the environmental indemnity agreement, if
any, related to any Mortgage Loan;
2.2.14 Copies of third-party management agreements, if any, for all hotels
and for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off
Date principal balance equal to or greater than $20,000,000;
2.2.15 The original or a copy of any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as the case may
be) within 45 days of the Closing Date. In addition, a copy of any ground lease
shall be delivered to Primary Servicer within 30 days of the Closing Date.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
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2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred
to in Sections 2.2.4 and 2.2.6 may be in the form of a single instrument
assigning the Mortgage and the Assignment of Leases to the extent permitted by
applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
assignment of the assignments of leases (to the extent separate from the
mortgages) and the assignments of UCC financing statements relating to the
Mortgage Loans naming Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and
assignments of UCC financing statements shall name Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from Seller to Purchaser and from Purchaser to Trustee on behalf of
the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3,
2.2.5 or 2.2.6, with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90 day period, but Seller delivers a
photocopy thereof (certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof submitted for recording) or an
Officer's Certificate of the Seller stating that such document has been sent to
the appropriate public recording office for recordation, to Trustee within such
90 day period, Seller shall then deliver within 180 days after the Closing Date
the recorded document (or within such longer period after the Closing Date as
Trustee may consent to, which consent shall not be unreasonably withheld so long
as Seller is, as certified in writing to Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
2.5 Trustee, as assignee or transferee of Purchaser, shall be entitled to all
scheduled payments of principal due thereon after the Cut-Off Date, all other
payments of principal collected after the Cut-Off Date (other than scheduled
payments of principal due on or before the Cut-Off Date), and all payments of
interest on the Mortgage Loans allocable to the period commencing on the Cut-Off
Date. All scheduled payments of principal and interest due on or before the
Cut-Off Date and collected after the Cut-Off Date shall belong to Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver, and
Purchaser, Trustee or the agents of either may submit or cause to be submitted
for recordation at the expense of Seller, in the appropriate public office for
real property records, each assignment referred to in clauses 2.2.4, 2.2.6(ii)
and 2.2.9(B) above (with recording information in blank if such information is
not yet available). If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller shall, at
its own expense (except in the case of a document or instrument that is lost by
Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
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2.7 As to each Mortgage Loan secured by a Mortgaged Property with respect to
which the related Mortgagor has entered into a franchise agreement and each
Mortgage Loan secured by a Mortgaged Property with respect to which a letter of
credit is in place, Seller shall provide a notice on or prior to the date that
is 30 days after the Closing Date to the franchisor or the issuing financial
institution, as applicable, of the transfer of such Mortgage Loan to the Trust
pursuant to the Pooling and Servicing Agreement, and inform such parties that
any notices to the Mortgagor's lender pursuant to such franchise agreement or
letter of credit should thereafter be forwarded to Master Servicer and, with
respect to each franchise agreement, provide a franchise comfort letter on or
prior to the date that is 30 days after the Closing Date. After the Closing
Date, with respect to any letter of credit that has not yet been assigned to the
Trust, upon the written request of Master Servicer or the applicable Primary
Servicer, Seller will draw on such letter of credit as directed by Master
Servicer or such Primary Servicer in such notice to the extent Seller has the
right to do so.
2.8 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the servicing of any Mortgage Loans and that are
not required to be a part of the Mortgage File and are reasonably necessary for
the ongoing administration and/or servicing of the applicable Mortgage Loan (the
"Servicing File") shall be delivered to Trustee by Seller to or at the direction
of Master Servicer, on behalf of Purchaser, on or prior to the 75th day after
the Closing Date, in accordance with Section 3.1 of the Primary Servicing
Agreement, if applicable.
2.9 The documents required to be delivered to Master Servicer (or in the
alternative, Primary Servicer) shall include, to the extent required to be (and
actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding the
foregoing, Seller shall not be required to deliver any draft documents, or any
attorney-client communications that are privileged communications or constitute
legal or other due diligence analyses, or internal communications of Seller or
its affiliates, or credit underwriting or other analyses, worksheets, memoranda,
communications, evaluations or data. Delivery of any of the foregoing documents
to Primary Servicer shall be deemed a delivery to Master Servicer and satisfy
Seller's obligations under this subparagraph. Each of the foregoing items may be
delivered by Seller in electronic form, to the extent such document is available
in such form and such form is reasonably acceptable to Master Servicer.
2.10 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this
Agreement, the ownership of each Mortgage Note, Mortgage and the other contents
of the related Mortgage File shall be vested in Purchaser and its assigns, and
the ownership of all records and documents constituting the Servicing File with
respect to the related Mortgage Loan prepared by or that come into the
possession of Seller shall immediately vest in Purchaser and its assigns, and
shall be delivered promptly by Seller to or on behalf of either Trustee or
Master Servicer as set forth herein, subject to the requirements of the Primary
Servicing Agreement. Seller's and
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Purchaser's records shall reflect the transfer of each Mortgage Loan from Seller
to Purchaser and its assigns as a sale.
2.11 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.11.1 this Agreement shall be deemed to be a security agreement; and
2.11.2 the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.12 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
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2.13 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.14 Seller shall, to the extent consistent with this Agreement and upon request
by or on behalf of Purchaser, take such reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. In such case, Seller
hereby authorizes Master Servicer to file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform Commercial
Code as in effect in any jurisdiction to perfect such security interest in such
property. In connection herewith, Purchaser shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
2.15 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note or lost note affidavit and indemnity (endorsed as
described in clause 2.2.1) required to be delivered to or on behalf of Trustee
or Master Servicer pursuant to this Section 2 on or before the Closing Date is
not so delivered, or is not properly executed or is defective on its face, and
Purchaser's acceptance of the related Mortgage Loan on the Closing Date shall in
no way constitute a waiver of such omission or defect or of Purchaser's or its
successors' and assigns' rights in respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or Trustee to cause Seller to cure any Material
Document Defect or Material Breach (each as defined below), or to repurchase or
replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, Trustee, Special
Servicer and each Rating Agency to examine and audit all books, records and
files pertaining to the Mortgage Loans, Seller's underwriting procedures and
Seller's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place at
one or more
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offices of Seller during normal business hours and shall not be
conducted in a manner that is disruptive to Seller's normal business operations
upon reasonable prior advance notice. In the course of such examinations and
audits, Seller will make available to such representatives of any of Purchaser,
each Underwriter, each Initial Purchaser, Trustee, Special Servicer and each
Rating Agency reasonably adequate facilities, as well as the assistance of a
sufficient number of knowledgeable and responsible individuals who are familiar
with the Mortgage Loans and the terms of this Agreement, and Seller shall
cooperate fully with any such examination and audit in all material respects. On
or prior to the Closing Date, Seller shall provide Purchaser with all material
information regarding Seller's financial condition and access to knowledgeable
financial or accounting officers for the purpose of answering questions with
respect to Seller's financial condition, financial statements as provided to
Purchaser or other developments affecting Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting Seller in any material
respect. Within 45 days after the Closing Date, Seller shall provide Master
Servicer or Primary Servicer, if applicable, with any additional information
identified by Master Servicer or Primary Servicer, if applicable, as necessary
to complete the CMSA Property File, to the extent that such information is
available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
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4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of Purchaser and its assigns with respect to each Mortgage Loan as
of the date hereof (or as of such other date specifically set forth in the
particular representation and warranty) each of the representations and
warranties set forth on Exhibit 2 hereto, except as otherwise set forth on
Schedule A attached thereto, and hereby further represents and warrants to
Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States. Seller
has the requisite power and authority and legal right to own the Mortgage Loans
and to transfer and convey the Mortgage Loans to Purchaser and has the requisite
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship or
moratorium, (B) other laws relating to or affecting the rights of creditors
generally, (C) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (D) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
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jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse change in the
business, operations, financial condition, properties or assets of Seller, or in
any material impairment of the right or ability of Seller to carry on its
business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, the LaSalle Mortgage Loan Information (as
defined in that certain indemnification agreement, dated February 15, 2007,
between Seller, Purchaser, the Underwriters and the Initial Purchaser (the
"Indemnification Agreement")) relating to the Mortgage Loans does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (when read together with the Final
Prospectus Supplement, in the case of Public Certificates, or when read together
with the Memorandum, in the case of the Private Certificates). Notwithstanding
anything contained herein to the contrary, this subparagraph 4.1.7 shall run
exclusively to the benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, provided that any representations
and warranties made as of a specified date shall be true and correct in all
material respects as of such specified date.
4.1.8 Seller has complied with the disclosure requirements of Regulation AB
that arise from its role as "seller" and "sponsor" in connection with the
issuance of the Certificates.
4.1.9 For so long as the Trust is subject to the reporting requirements of
the Exchange Act, Seller shall provide Purchaser (or with respect to any
Serviced Companion Mortgage Loan that is deposited into an Other Securitization,
the depositor in such Other Securitization) and the Paying Agent with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next to Seller's name on Schedule XV and Schedule XVI of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
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Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and 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.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
15
condition of Purchaser that would materially and adversely affect the ability of
Purchaser to perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of Trustee
on behalf of the holders of the Certificates, whether directly or by way of
Purchaser's assignment of its rights hereunder to Trustee, the representations
and warranties set forth on Exhibit 2 hereto (each as of the date hereof unless
otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to Trustee pursuant to Section 2 is not delivered as and when required
(and including the expiration of any grace or cure period), is not properly
executed or is defective on its face, or if there is a breach of any of the
representations and warranties required to be made by Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit 2 hereto, and in either case such defect or breach, either
(i) materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan, or (ii) both (A) the document defect
or breach materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph 42 of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, Master Servicer shall, and Special Servicer may, request that Seller,
not later than 90 days from Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within
16
such 90 day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage"(as defined
in the Code) but Seller is diligently attempting to effect such correction or
cure, as certified by Seller in an Officer's Certificate delivered to Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90 day period, then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to Seller by Trustee pursuant
to Section 2.2 of the Pooling and Servicing Agreement not less than 90 days
prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by Seller of any Material Document
Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured in all material respects
within the above cure periods, Seller shall, on or before the termination of
such cure periods, either (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from Purchaser or its assignee at the Purchase Price as defined in
the Pooling and Servicing Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at its option replace, without recourse, any Mortgage Loan or REO
Mortgage Loan to which such defect relates with a Qualifying Substitute Mortgage
Loan. If such Material Document Defect or Material Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence or the previous paragraph, repurchase
or substitution must occur within 90 days from the date Seller was notified of
the breach or defect. Seller agrees that any substitution shall be completed in
accordance with the terms and conditions of the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to repurchase or replace each such Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case of such breach
or document defect, (A) Seller provides a Nondisqualification Opinion to Trustee
at the expense of Seller if Trustee acting at the direction of the Controlling
Class determines that it would be usual and customary in accordance with
industry practice to obtain a Nondisqualification Opinion and (B) both of the
following conditions would be satisfied if Seller were to repurchase or replace
only those Mortgage Loans as to which a Material Breach or Material Document
Defect had occurred without regard to this
17
paragraph (the "Affected Loan(s)"): (i) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not less than
the greater of (A) the debt service coverage ratio for all such Crossed Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (B) 1.25x, and (ii) the
loan-to-value ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (A) the current loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and
(B) 75%. The determination of Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the absence
of manifest error. Master Servicer will be entitled to cause to be delivered, or
direct Seller to (in which case Seller shall) cause to be delivered to Master
Servicer: (A) an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of Seller if the scope and cost of
the Appraisal is approved by Seller (such approval not to be unreasonably
withheld) and (B) an opinion of counsel that not requiring the repurchase of
each such Crossed Mortgage Loan will not result in an Adverse REMIC Event.
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while Trustee (as assignee of
Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a "Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby agree to modify,
prior to such repurchase or substitution, the related Mortgage Loan documents in
a manner such that such affected Repurchased Loan, on the one hand, and any
related Cross-Collateralized Loans held by Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided
that Seller shall have furnished Trustee, at the expense of Seller, a
nondisqualification opinion that such modification shall not cause an Adverse
REMIC Event; provided, further, that if such nondisqualification opinion cannot
be furnished, Seller and Purchaser agree that such repurchase or substitution of
only the Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be permitted and Seller shall repurchase or substitute for the
Repurchased Loan and all related Cross-Collateralized Loans. Any reserve or
other cash collateral or letters of credit securing the Cross-Collateralized
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B to Exhibit 2 hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
5.6 Upon occurrence (and after any applicable cure or grace period), any of the
following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (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 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,
18
unless there is included in the Mortgage File a certified copy of the Mortgage
by the local authority with which the Mortgage was recorded; or (c) the absence
from the Mortgage File of the item specified in paragraph 2.2.8. If any of the
foregoing Material Document Defects is discovered by the Custodian (or Trustee
if there is no Custodian), Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, Master Servicer) will take the steps described
elsewhere in this Section, including the giving of notices to the Rating
Agencies and the parties hereto and making demand upon Seller for the cure of
the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists
with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction
or cure of such Material Document Defect or Material Breach, (ii) to repurchase
the affected Mortgage Loan from the Trust or (iii) to replace such Mortgage Loan
with a Qualifying Substitute Mortgage Loan, each in accordance with this
Agreement, then provided that (i) the period of time provided for Seller to
correct, repurchase or cure has expired and (ii) the Mortgage Loan is then in
default and is then a Specially Serviced Mortgage Loan, Special Servicer may,
subject to the Servicing Standard, modify, work-out or foreclose, sell or
otherwise liquidate (or permit the liquidation of) the Mortgage Loan pursuant to
Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of the Pooling and Servicing
Agreement, while pursuing the repurchase claim. Seller acknowledges and agrees
that any modification of the Mortgage Loan pursuant to a work-out shall not
constitute a defense to any repurchase claim nor shall such modification and
work-out change the Purchase Price due from Seller for any repurchase claim. Any
sale of the Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of
the REO Property, to a Person other than Seller shall be without (i) recourse of
any kind (either express or implied) by such Person against Seller and (ii)
representation or warranty of any kind (either express or implied) by Seller to
or for the benefit of such Person.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or REO
Properties, as applicable, to the extent set forth in the Pooling and Servicing
Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. After a final liquidation of the Mortgage Loan
or REO Mortgage Loan, if a court of competent jurisdiction issues a final order
that Seller is or was obligated to repurchase the related Mortgage Loan or REO
Mortgage Loan, after the expiration of any applicable appeal period (a "Final
Judicial Determination") or Seller otherwise accepts liability, then, but in no
event later than the Termination of the Trust pursuant to Section 9.30 of the
Pooling and Servicing Agreement, then Seller will be obligated to pay to the
Trust the difference between any Liquidation Proceeds received upon such
liquidation in accordance with the Pooling and Servicing Agreement (including
those arising from any sale to Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, Special
19
Servicer shall not receive a Liquidation Fee from Seller (but may collect such
Liquidation Fee from the related Liquidation Proceeds as otherwise provided
herein) unless Seller is required to repurchase such Mortgage Loan or REO
Property and such Mortgage Loan or REO Property is repurchased after the date
that is 180 days or more after the Seller receives notice of the breach or
defect causing the repurchase; provided, however, that in the event Seller is
obligated to repurchase the Mortgage Loan or REO Mortgaged Property after a
final liquidation of such Mortgage Loan or REO Property pursuant to the
immediately preceding paragraph, an amount equal to any Liquidation Fee
(calculated on the basis of Liquidation Proceeds) payable to Special Servicer
shall be included in the definition of "Purchase Price" in respect of such
Mortgage Loan or REO Mortgaged Property. Except as expressly set forth above, no
Liquidation Fee shall be payable in connection with a repurchase of a Mortgage
Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 of Exhibit 2 hereto
because the underlying loan documents do not provide for the payment by the
Mortgagor of reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan, and the related Mortgagor's payments made for the
reasonable costs and expenses associated with the defeasance or assumption of a
Mortgage Loan are insufficient and cause the Trust to incur an Additional Trust
Expense in an amount equal to such reasonable costs and expenses not paid by
such Mortgagor, Seller hereby covenants and agrees to reimburse the Trust within
90 days of the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. The parties hereto acknowledge that such
reimbursement shall be Seller's sole obligation with respect to the breach
discussed in the previous sentence.
5.13 The Pooling and Servicing Agreement shall provide that Trustee (or Master
Servicer or Special Servicer on its behalf) shall give written notice promptly
(but in any event within three Business Days) to Seller of its discovery of any
Material Document Defect or Material Breach and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced Mortgage Loan
(as defined in the Pooling and Servicing Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by Trustee of the Purchase Price
therefor, promptly shall deliver or cause to be delivered to Seller all Mortgage
Loan documents with respect to such Mortgage Loan, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to Trustee
shall be endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan, in each
case without recourse, including any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policies with respect thereto.
20
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date, provided that any representations and warranties
made as of a specified date shall be true and correct as of such specified date
(to the extent of the standard, if any, set forth in each representation and
warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms as
are agreed upon and reasonably acceptable to Seller or Purchaser, as applicable,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its designee
all documents required to be delivered to Purchaser as of the Closing Date
pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of the LaSalle Mortgage Loan Information to be
disclosed in the Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
21
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and
dated the Closing Date, and upon which Purchaser and its successors and assigns
may rely, to the effect that: (i) the representations and warranties of Seller
in this Agreement are true and correct in all material respects on and as of the
Closing Date with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws or other organizational documents.
7.4 An original or copy of a certificate of existence for Seller from the
Comptroller of the Currency dated not earlier than 30 days prior to the Closing
Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under the law of the United States and has
the power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this
22
Agreement, or (C) conflicts with or results in a breach or violation of any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over Seller or its assets, except
where in any of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation of the
transactions contemplated hereby by Seller or materially and adversely affect
its ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship or
moratorium, (2) other laws relating to or affecting the rights of creditors
generally, (3) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 A "10b-5" opinion of counsel addressed to Purchaser and the Underwriters, in
form reasonably acceptable to Purchaser and the Underwriters, as to the
disclosure provided by Seller to Purchaser in connection with the Certificates.
7.8 An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as such term is defined in Regulation AB)
in connection with the Certificates. Such other opinions of counsel as any
Rating Agency may reasonably request in connection with the sale of the Mortgage
Loans by Seller to Purchaser or Seller's execution and delivery of, or
performance under, this Agreement.
23
7.9 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
7.10 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.11 An officer's certificate of Purchaser, dated as of the Closing Date, with
the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.12 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.13 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
9. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend (or such other address as may hereafter
be furnished in writing by Purchaser), or if (ii) to Seller, addressed to Seller
at LaSalle Bank National Association, Real Estate Capital Markets, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx,
Telecopy No.: (000) 000-0000; Telephone No.: (000) 000-0000, with a copy to
LaSalle Bank Corporation, Legal Department, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Telecopy No.: (312)
000-0000, Telephone No.: (000) 000-0000.
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
24
in any other jurisdiction. To the extent permitted by applicable law, the
parties hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to Trustee as
may be required to effect the purposes of the Pooling and Servicing Agreement
and, upon such assignment, Trustee shall succeed to the rights and obligations
hereunder of Purchaser. No owner of a Certificate issued pursuant to the Pooling
and Servicing Agreement shall be deemed a successor or permitted assigns because
of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. 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.
25
The headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
26
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director -Structure Products
Real Estate Capital Markets
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
o Mortgage Loan Seller
o Loan Number
o Property Name
o Street Address
o City
o State
o Date of Maturity
o Cut-off Date Balance
o Note Date
o Original Term to Maturity or ARD
o Remaining Term
o Original Amortization
o Rate
o ARD Loan (Yes/No)
1-1
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER PROPERTY NAME STREET ADDRESS CITY STATE MATURITY DATE
---------------------------------------------------------------------------------------------------------------------------------
00 XxXxxxx Xxxxxxxxx Xxxxx Center 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 01/01/2017
17 LaSalle 600 West Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 01/01/2017
00 XxXxxxx Xxxx Xxx- Xxxxxxxx (A) 000 Xxxxxxx Xxxxx, XX Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxx Xxx- Xxxxxx XX (A) 0000 Xxxxxx Xxxxxx XX Xxxxx Xxxxxx XX 01/01/2017
20 LaSalle Jade Pig - Harrison (A) 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XX 01/01/2017
21 LaSalle Jade Pig- Kalamazoo D&W (A) 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
22 LaSalle CoBank Building 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 11/01/2013
25 LaSalle 000 Xxxxxx Xxxxxx Xxxx 000 Xxxxxx Xxxxxx Xxxx Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxx Xxxxx 0000-0000 Xxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxx Xxxx Crossing 00000 XxXxxxxx Xxxx Xxxxxx Xxxx XX 09/01/2011
00 XxXxxxx XXX Xxxxxxxxx I 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 12/01/2016
45 LaSalle Foothill Ranch 41 & 00 Xxxx Xxxxxx Xxxxx Xxxx Xxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxxxx Xxxx Apts 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxx Xxxxx Properties 00000 Xxx Xxxx Xxxxxxxx Xxxxxxx XX 09/01/2016
52 LaSalle Flying Flags RV Park 180 Avenue of the Flags Buellton CA 12/01/2016
00 XxXxxxx Xxxx Xxxxxx Plaza 000 Xxxxx Xxxx Xxxxxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxx Xxxxxxx Shopping Center 0000-0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxxxx II 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 01/01/2017
00 XxXxxxx Xxxxxxxxxxx Xxxxxx 0000, 4136, 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 01/01/2017
Parkway
00 XxXxxxx Xxxx Xxxxx Xxxxxxxx Xxxxxx 000-000 Xxxx Xxxxx Xxxx Xxxxxxxxx XX 12/01/2016
82 LaSalle Chesapeake Xxxxxx 0000 & 0000 Xxxxxxxxxx Xxxxx Xxxxxxx Xxxx XX 12/01/2016
00 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 12/01/2016
00 XxXxxxx Xxxxxx Xxxxx 000 X Xxxxxx Xxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxxx 000 Xxxxx Xxx Xxxx Xxxxxxxxxx XX 01/01/2017
92 LaSalle Independence Plaza 000 Xxxx Xxxxxx Xxx Xxxxx XX 12/01/2016
00 XxXxxxx Xxxxxxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 01/01/2017
CUT-OFF ORIGINAL REMAINING
MORTGAGE DATE TERM TERM ORIGINAL MORTGAGE
LOAN NO. BALANCE NOTE DATE TO MATURITY TO MATURITY AMORT. TERM RATE ARD LOAN
--------------------------------------------------------------------------------------------
11 $45,949,650 12/11/2006 120 119 360 5.500% No
17 $26,500,000 12/15/2006 120 119 360 5.610% No
18 $11,738,758 12/15/2006 120 119 360 5.400% No
19 $ 6,144,063 12/15/2006 120 119 360 5.400% No
20 $ 3,891,740 12/15/2006 120 119 360 5.400% No
21 $ 3,201,307 12/15/2006 120 119 360 5.400% No
22 $21,000,000 10/17/2006 84 81 IO 6.180% No
25 $20,500,000 12/04/2006 120 119 360 6.280% No
29 $16,700,000 12/07/2006 120 119 360 5.680% No
42 $15,800,000 04/27/2006 64 55 IO 6.260% No
43 $15,125,000 11/29/2006 120 118 360 6.143% No
45 $14,600,000 12/05/2006 120 119 360 6.180% No
47 $14,000,000 11/27/2006 120 118 360 5.850% No
48 $14,000,000 09/01/2006 120 115 360 5.970% No
52 $12,278,024 11/29/2006 120 118 360 5.720% No
54 $12,000,000 12/01/2006 120 118 IO 5.620% No
65 $ 9,000,000 12/01/2006 120 118 IO 5.620% No
72 $ 8,700,000 11/20/2006 120 118 360 6.280% No
77 $ 8,200,000 12/08/2006 120 119 360 6.153% No
80 $ 8,111,325 12/07/2006 120 119 360 6.030% No
81 $ 8,000,000 11/30/2006 120 118 360 5.850% No
82 $ 8,000,000 11/03/2006 120 118 360 5.900% No
83 $ 7,936,155 11/30/2006 120 118 360 5.820% No
89 $ 6,700,000 12/01/2006 120 118 IO 5.620% No
90 $ 6,691,024 12/06/2006 120 119 300 5.750% No
92 $ 6,300,000 11/30/2006 120 118 IO 5.560% No
97 $ 5,864,174 12/07/2006 120 119 360 6.030% Xx
0-0
00 XxXxxxx Xxxxx Xxxxx 000-000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 12/01/2016
99 LaSalle 000 Xxxxx Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx XX - Xxxx Xxxxxxx Xxxxxxxx, XX 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 11/01/2016
104 LaSalle Wildrose 9116 & 0000 Xxxxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx Xxxxxx Xxxxxx Colony 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx XX 12/01/2016
000 XxXxxxx Xxxxxxx Xxx - Xxxxxxxxxx, XX 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 11/01/2016
111 LaSalle Euronet Building 00000 Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxx XX 01/01/2017
000 XxXxxxx Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxxxxx XX 01/01/2017
000 XxXxxxx Xxxxxxx Xxx - Xxxxxx, XX 000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 12/01/2016
000 XxXxxxx 0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx Xxxxx Xxxx XX 01/01/2017
000 XxXxxxx Xxx Xxxxx Retail 0000 Xxxx Xxxxx Xxxx Xxxxx Xxx Xxxxx XX 12/01/2011
163 LaSalle DoMar Properties 3815, 3827, & 0000 0xx Xxxxxx Xxxxxxxxxx XX 12/01/2016
South
98 $5,750,000 12/01/2006 120 118 IO 5.560% No
99 $5,600,000 11/17/2006 120 118 360 5.930% No
101 $5,569,570 10/19/2006 120 117 240 6.960% No
104 $5,490,073 11/27/2006 120 118 360 5.680% No
105 $5,440,000 11/30/2006 120 118 360 5.900% No
110 $5,278,478 10/31/2006 120 117 300 5.940% No
111 $5,245,274 12/04/2006 120 119 360 5.680% No
112 $5,233,693 12/07/2006 120 119 360 6.030% No
114 $5,087,352 11/20/2006 120 118 300 6.160% No
120 $4,721,032 12/07/2006 120 119 360 5.950% No
155 $2,175,000 11/21/2006 60 58 360 6.390% No
163 $1,797,008 11/28/2006 120 118 360 6.000% No
1-2
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole loan
and not a participation interest in a mortgage loan. Immediately prior to the
transfer to Purchaser of the Mortgage Loans, Seller had good title to, and was
the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances (other than with
respect to certain agreements relating to servicing rights and the rights of a
holder of a related companion loan pursuant to a co-lender or other agreement);
provided that recording and/or filing of various transfer documents are to be
completed after the Closing Date as contemplated hereby and by the Pooling and
Servicing Agreement. Upon the consummation of the transactions contemplated by
this Agreement, Seller will have validly and effectively conveyed to Purchaser
all legal and beneficial interest in and to each Mortgage Loan free and clear of
any pledge, lien, charge, security interest or other encumbrance (other than
with respect to certain agreements relating to servicing rights and the rights
of a holder of a related companion loan pursuant to a co-lender or other
agreement); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to Purchaser or
its designee does not require Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve (12) month period (or
since the date of origination of the Mortgage Loan if the Mortgage Loan was
originated within the past twelve (12) months) immediately preceding the Cut-Off
Date, in each case, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the Title Insurance Policy (or if not yet
issued, referred to in a pro forma title policy, a "marked-up" commitment
binding upon the title insurer or escrow instructions binding on the title
insurer and irrevocably obligating the title insurer to issue such title
insurance policy), (c) exceptions and exclusions specifically referred to in
such Title Insurance Policy (or if not yet issued, referred to in a pro forma
title policy, a "marked-up" commitment binding upon the title insurer or escrow
instructions binding on the title insurer and irrevocably obligating the title
insurer to issue such
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title insurance policy), (d) other matters to which like properties are commonly
subject, (e) rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property, (f) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan and (g) if the related Mortgaged Property
consists of one or more units in a condominium, the related condominium
declaration, none of which matters referred to in clauses (b) through (g),
individually or in the aggregate, materially and adversely interferes with the
security intended to be provided by such Mortgage, the marketability or current
use of the Mortgaged Property or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt (the
foregoing items (a) through (g) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of Trustee is in recordable form (but for insertion of the names and
addresses of the assignee and any related recording information which is not yet
available to Seller) and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the Mortgagor's
personal property includes all personal property that a prudent mortgage lender
making a similar Mortgage Loan would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property and any Permitted Encumbrances.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5. Assignment of Leases and Rents. The Assignment of Leases (either as a
separate instrument or as part of the Mortgage) related to and delivered in
connection with each Mortgage Loan establishes and creates a valid, subsisting
and, subject to the exceptions set forth in paragraph 13 below and any Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and except that a license may have been granted to the related Mortgagor by the
related lender to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property so long as no event of default has
occurred under such Mortgage Loan, each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of Trustee and
is in recordable form (but for insertion of the name and address of the assignee
and any related recording information which is not yet available to Seller) and
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constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default (beyond applicable
notice and grace periods) under the Mortgage Loan, the appointment of a receiver
for the collection of rents or for the related mortgagee to enter into
possession of the related Mortgaged Property to collect the rents or for rents
to be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been satisfied,
cancelled, rescinded or subordinated in whole or in part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part (except for partial reconveyances of real property that are set
forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File and none of the Mortgage Loans has been materially
modified since January 31, 2007.
7. Condition of Property; Condemnation. Except with respect to Mortgage Loans
secured primarily by unimproved land: (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within eighteen (18) months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or a letter of credit or adequate reserves
therefor have been established based on the engineering report) that would
materially and adversely affect its value as security for the related Mortgage
Loan, and (ii) with respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an engineering report within eighteen (18)
months prior to the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
each Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or a letter of credit or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. As of the
Closing Date, Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any Mortgaged
Property. To Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of the
date of the origination of each Mortgage Loan, (x) all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of such property, except for
encroachments that are insured against by the Title Policy referred to herein or
that do not materially and adversely affect the value or marketability of such
Mortgaged Property, (y) no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy referred to herein,
and (z) the Mortgaged Property securing each Mortgage Loan is located on or
adjacent to a public road, or has access to an easement permitting ingress and
egress.
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8. Title Insurance. Each Mortgaged Property is covered by an American Land Title
Association (or an equivalent form of) lender's title insurance policy or a pro
forma or marked-up title insurance commitment or escrow instructions binding on
the title insurer irrevocably obligating the title insurer to issue such title
insurance policy (on which the required premium has been paid) which evidences
such title insurance policy (the "Title Policy") in the original principal
amount of the related Mortgage Loan after all advances of principal, except that
in the case of a Mortgage Loan as to which the related Mortgaged Property is
made up of more than one parcel of property, the security interest in each of
which parcel is granted by a Mortgage and such Mortgage (and therefore the
related Title Policy) may be in an amount less than the original principal
amount of the Mortgage Loan, but such Mortgages, in the aggregate, are not less
than the total original principal amount of the Mortgage Loan, and provided that
such amount is at least equal to the allocated Mortgage Loan amount, as
evidenced by the Mortgage Loan documents. Each Title Policy insures that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to Permitted Encumbrances. Each Title Policy (or, if it has yet to
be issued, the coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid and no material claims have been made thereunder
and no claims have been paid thereunder. No holder of the related Mortgage has
done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to Trustee, such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of
Trustee without the consent of, or notice to, the insurer. To Seller's
knowledge, the insurer issuing such Title Policy is qualified to do business in
the jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
(for the avoidance of doubt, amounts held in escrow or reserve accounts pending
the satisfaction of certain conditions relating to leasing, repairs or other
matters with respect to the related Mortgaged Property will be considered fully
disbursed and will not be considered an exception to this representation) and
there is no obligation for future advances with respect thereto. With respect to
each Mortgage Loan, any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for such
purpose that were to have been complied with on or before the Closing Date have
been complied with, or any such funds so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note, Mortgage or other Mortgage Loan
documents for each Mortgage Loan, together with applicable state law, contains
customary and enforceable provisions (subject to the exceptions set forth in
paragraph 13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage or has been substituted in accordance
with the Mortgage and applicable law, and (2) no fees or expenses are payable to
such trustee by Seller, Purchaser or any transferee thereof except in connection
with a trustee's sale after default by the related Mortgagor or in connection
with any full or partial release of the related Mortgaged Property or related
security for the related Mortgage Loan.
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12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous assessment, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of the most recent
assessment with respect to each Mortgaged Property (an "Environmental
Report") has been delivered to Purchaser, and Seller has no knowledge
of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
Environmental Report. The Mortgage Loan documents for each Mortgage
Loan require the related Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations. Where
such Environmental Report disclosed the existence of a material and
adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or
circumstance, (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated,
(iii) the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in light
of the circumstances and/or to establish an operations and maintenance
plan, (iv) the related mortgagor, or other responsible party, provided
a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable federal, state or local government authorities had no
current intention of taking any action, and are not requiring any
action, in respect of such conditions or circumstances, (v) such
conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant
recommended no further investigation or remediation, (vi) the
expenditure of funds reasonably estimated to be necessary to effect
such remediate is not greater than 2% of the outstanding principal
balance of the related Mortgage Loan, and the Mortgagor or other
responsible party has agreed to undertake the remediation, (vii) there
exists an escrow of funds reasonably estimated to be sufficient for
purposes of effecting such remediation and not less than 125% of the
estimated cost thereof, (viii) a responsible party provided a guaranty
or indemnity to the related Mortgagor to cover the costs of any
required investigation, testing, monitoring or remediation, (ix) the
related Mortgagor or one of its affiliates is currently taking or
required to take such actions (that may be the implementation of an
operations and maintenance plan) with respect to such conditions or
circumstances or have been recommended by the environmental site
assessment or required by the applicable governmental authority and
the Mortgagor or other responsible party has agreed to be responsible
for such required actions, the remaining cost of which does not exceed
2% of the outstanding principal balance of the Mortgage Loan or (x)
the circumstance or condition has been fully remediated based on a
report from a qualified environmental consultant. In connection with
the origination of each
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Mortgage Loan, each environmental consultant has represented in such
Environmental Report or in a supplement letter that the environmental
assessment of the applicable Mortgaged Property was conducted
utilizing generally accepted Phase I industry standards using the
American Society for Testing and Materials (ASTM) standards. Each
Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C (the
"Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on Schedule A
to this Exhibit 2, with respect to each Schedule C Loan, (i) to
Seller's knowledge, the Environmental Insurance Policy is in full
force and effect, (ii)(a) a property condition or engineering report
was prepared with respect to lead based paint ("LBP") and radon gas
("RG") at each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing materials ("ACM") at
each related Mortgaged Property and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG environmental
condition or circumstance affecting the related Mortgaged Property,
the related Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide additional
security, or establish with the lender a reserve from loan proceeds,
in an amount deemed to be sufficient by Seller for the remediation of
the problem and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of the
Mortgage Loan, (iii) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or circumstance affecting
the Mortgaged Property (other than the existence of LBP, ACM or RG)
that was not disclosed to the Policy Issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (iv) the
premium of any Environmental Insurance Policy has been paid through
the maturity of the policy's term and the term of such policy extends
at least five years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM Standards issued sometime within 18 months prior to the
Cut-Off Date as set forth on Schedule A to this Exhibit 2, (i) no
Hazardous Material is present on such Mortgaged Property such that (1)
the value, use or operation of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or local
law, (a) such Hazardous Material could be required to be eliminated at
a cost materially and adversely affecting the value of the Mortgaged
Property before such Mortgaged Property could be altered, renovated,
demolished or transferred or (b) the presence of such Hazardous
Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the
holders of a security interest therein, to liability for the cost of
eliminating such Hazardous Material or the hazard created thereby at a
cost materially and adversely affecting the value of the Mortgaged
Property, and (ii)
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such Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not have
a material adverse effect on the value of such Mortgaged Property and
neither Seller nor, to Seller's knowledge, the related Mortgagor or
any current tenant thereon, has received any notice of violation or
potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. Sections
1251 et seq.), the Clean Air Act as amended (42 U.S.C. Sections 1251
et seq.) and any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage, Assignment of Leases and
other agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor or any guarantor of any non-recourse
exceptions and environmental liability is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by (a)
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by (b) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law but (subject to
the limitations set forth in the foregoing clauses (a) and (b)) such limitations
or unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premium
or yield maintenance charges.
14. Insurance. 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, 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 an amount not less than the lesser of the outstanding principal balance of
the related Mortgage Loan and the replacement cost of the improvements
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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; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to twelve (12) months of operations of the Mortgaged
Property estimated as of the date of origination by the originator of such
Mortgage Loan consistent with its capital markets conduit lending practices; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards and the Federal Emergency
Management Agency requires flood insurance to be maintained); and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders for properties of similar types and in
any event not less than $1 million per occurrence. Each insurance policy
contains a standard mortgagee clause that names the mortgagee as an additional
insured in the case of liability insurance policies and as a loss payee in the
case of property insurance policies and requires prior notice to the holder of
the Mortgage of termination, reduction of coverage or cancellation. No such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured. Each Mortgage, except as set forth in the first sentence of
this paragraph 14, obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan. For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either: (i) a
seismic report which indicated a PML of less than 20% was prepared, based on a
450 or 475-year average return period with a 10% probability of exceedance in a
50-year period, in connection with the origination of the Mortgage Loan secured
by such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered delinquent or unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate in
real estate or, if the related Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease" which term shall include any related estoppel letter
or lender protection agreement between Seller and related lessor), by the
related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such Ground
Leases:
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(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required for assignment to Purchaser, it has been obtained prior to
the Closing Date) and is further assignable by Purchaser and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it either has been obtained or it cannot be unreasonably
withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, Seller
has received no notice that an event of default has occurred
thereunder, and, to Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
(v) Such Ground Lease (A) requires the lessor under such Ground Lease to
give notice of any default by the lessee to the holder of the
Mortgage; and (B) provides that no notice of termination given under
such Ground Lease is effective against the holder of the Mortgage
unless a copy of such notice has been delivered to such holder and
the lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the economic
terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty (20)
years beyond the Maturity Date of the related Mortgage Loan;
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(viii) Under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, taken together, any related
insurance proceeds or condemnation award awarded to the holder of
the ground lease interest will be applied either (A) to the repair
or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed or consented to by the
related Mortgage having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where
a provision entitling a third party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property
in the lending area where the Mortgaged Property is located; and
such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in
a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each Mortgage
Loan that are, as of the Closing Date, required to be deposited or paid have
been so deposited or paid.
19. LTV Ratio. 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 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that 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)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under
2-10
circumstances that made a default reasonably foreseeable or (b) satisfies the
provisions of either clause (a)(i) of paragraph 19 (substituting the date of the
last such modification for the date the Mortgage Loan was originated) or clause
(a)(ii) of paragraph 19, including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan (other
than (a) amounts paid by a tenant as specifically provided under a related lease
or by the property manager or (b) application and commitment fees, escrow funds,
points and reimbursements for fees and expenses incurred in connection with the
origination and funding of the Mortgage Loan).
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage, except, in each case, for liens that were bonded or
escrowed for or insured against by the Title Policy referred to herein, and no
rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage except, in each
case, for liens that were bonded or escrowed for or insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with (or is exempt
from) all applicable usury laws and any other applicable material laws in effect
at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence, no
Mortgage Note or Mortgage requires the mortgagee to release all or any material
portion of the related Mortgaged Property that was included in the appraisal for
such Mortgaged Property, and/or generates income from the lien of the related
Mortgage except upon payment in full of all amounts due under the related
Mortgage Loan or in connection with the defeasance provisions of the related
Note and Mortgage. The Mortgages relating to those Mortgage Loans identified on
Schedule A hereto require the mortgagee to grant releases of portions of the
related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and/or (b) the payment of a predetermined or
objectively determinable release price and prepayment consideration in
connection therewith. Except as described in the first sentence hereof and for
those Mortgage Loans identified on Schedule A, no Mortgage Loan permits the full
or partial release or substitution of collateral unless the mortgagee or
servicer can require the Mortgagor to provide an opinion of tax counsel to the
effect that such release or substitution of collateral (a) would not constitute
a "significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. Section 1.1001-3 and (b) would not cause such Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
The loan documents require the related Mortgagor to bear the reasonable cost of
such opinion.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or shared appreciation feature or
provides for negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the
2-11
Anticipated Repayment Date) or for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged Property.
Neither Seller nor any affiliate thereof has any obligation to make a capital
contribution to the Mortgagor under the Mortgage Loan or otherwise.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan
(other than payments due but not yet thirty (30) days or more delinquent), in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller elsewhere in this Exhibit 2 or the exceptions listed in Schedule A
attached hereto.
28. Inspections. Seller (or if Seller is not the originator, the originator of
the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based upon a letter from governmental authorities, a
legal opinion, a zoning consultant's report or an endorsement to the related
Title Policy, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property are in material compliance with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property, such value as
determined by the appraisal performed at origination or in connection with the
sale of the related Mortgage Loan by Seller hereunder or any such material
non-compliance with such applicable zoning laws is insured by the Title Policy
or a law and ordinance insurance policy.
30. Junior Liens. Except with respect to the lien securing another Mortgage Loan
cross-collateralized and cross-defaulted with the Mortgage Loan, none of the
Mortgage Loans permits the related Mortgaged Property to be encumbered by any
lien (other than a Permitted Encumbrance) junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. Except with respect to the above, Seller has no knowledge
that any of the Mortgaged Properties is encumbered by any lien (other than a
Permitted Encumbrance) junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are no
actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
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32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on (a) a letter from
governmental authorities, (b) a legal opinion, (c) an endorsement to the related
Title Policy, (d) a zoning report from a zoning consultant or (e) other due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related
Mortgagor, the related lessee, franchisee or operator was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued and are in effect.
34. RESERVED [ONLY APPLICABLE IF ANY MORTGAGE LOAN IS AN ASSISTED LIVING
FACILITY].
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not secured
by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan 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 prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan documents, transfers among existing members, partners or shareholders in
the Mortgagor, transfers among affiliated Mortgagors with respect to cross
collateralized Mortgage Loans or multi-property Mortgage Loans, transfers among
co-Mortgagors, transfers of worn out or obsolete furniture, furnishings or
equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan documents; provided, however, that certain
Mortgage Loans provide a mechanism for the assumption of the loan by a third
party upon the Mortgagor's satisfaction of certain conditions precedent, and
upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized or
as of the Mortgage Loan's closing date was amended to be organized, solely for
the purpose of owning and operating one or more of the Mortgaged Properties
securing the Mortgage Loans and prohibit it from engaging in any business
unrelated to such Mortgaged Property or Properties, and whose organizational
documents further provide, or which entity
2-13
represented in the related Mortgage Loan documents, substantially to the effect
that it does not have any assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage Loan
provide that such Mortgage Loan constitutes either (a) the recourse obligations
of at least one natural person or (b) the non-recourse obligations of the
related Mortgagor, provided that at least one natural person (and the Mortgagor
if the Mortgagor is not a natural person) is liable to the holder of the
Mortgage Loan for damages arising in the case of fraud or willful or material
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents provide
that the related borrower is responsible for the payment of all reasonable costs
and expenses of the lender incurred in connection with the defeasance of such
Mortgage Loan and the release of the related Mortgaged Property, and the
borrower is required to pay all reasonable costs and expenses of the lender
associated with the approval of an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until the
date that is at least two (2) years after the Closing Date, (ii) it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Authorized to do Business. To the extent required under applicable law as of
the date of origination, and necessary for the enforceability or collectability
of the Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
42. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
43. Terrorism Insurance. With respect to each Mortgage Loan that has a principal
balance as of the Cut-off Date that is greater than or equal to $17,500,000, the
related all risk insurance
2-14
policy and business interruption policy do not specifically exclude Acts of
Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, from
coverage, or if such coverage is excluded, is covered by a separate terrorism
insurance policy. With respect to each other Mortgage Loan, the related all risk
insurance policy and business interruption policy did not as of the date of
origination of the Mortgage Loan, and, to Seller's knowledge, do not, as of the
date hereof, specifically exclude Acts of Terrorism from coverage, or if such
coverage is excluded, it is covered by a separate terrorism insurance policy.
With respect to each of the Mortgage Loans, the related Mortgage Loan documents
do not waive or prohibit the mortgagee from requiring coverage for acts of
terrorism or damages related thereto, except to the extent that any right to
require such coverage may be limited by commercially reasonable availability, or
as otherwise indicated on Schedule A.
44. Operating Statements and Rent Rolls. In the case of each Mortgage Loan, the
related Mortgage Loan documents require the related Mortgagor, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than annually (except in
certain cases if the Mortgage Loan has an outstanding principal balance of less
than or equal to $3,500,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases, the Mortgage Loan
documents require the Mortgagor, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Mortgagor
annually), and such other information as may be required therein.
45. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code and Treasury Regulation Section
1.860G-2(a) (but without regard to the rule in Treasury Regulation Sections
1.860G-2(a)(3) and 1.860G-2(f)(2) that treat a defective obligation as a
qualified mortgage, or any substantially similar provision).
46. No Fraud in Origination. A court of competent jurisdiction will not find, in
a final non-appealable judgment, that an employee of Seller actively
participated with the Mortgagor in any intentional fraud in connection with the
origination of the Mortgage Loan. To Seller's knowledge, no Mortgagor is guilty
of defrauding or making an intentional material misrepresentation to Seller in
connection with the origination of the Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan, and such appraisal satisfied the
guidelines in Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as in effect on the date such Mortgage Loan was
originated.
48. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 48 are made solely for the
purpose of determining whether the Mortgaged Property, if acquired by the Trust,
would qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code, and may not be relied upon or used for any other purpose. Such
representations shall not be construed as a guarantee to any degree that
defaults or losses will not occur.
2-15
49. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots containing no other property, or is subject to an endorsement
under the related Title Policy insuring same, or an application for the creation
of separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such tax lots shall be effective for the
next tax year.
2-16
Schedule A to Exhibit 2
Exceptions to Representations and Warranties
EXCEPTION TO REPRESENTATIONS (4) AND (8)
MORTGAGE LOAN EXCEPTION
--------------------------------- --------------------------------------------
00 Xxxxx Xxxxx The Mortgaged Property is subject to a right
to purchase in favor of the ground lessor.
If the ground lessor exercises its purchase
option, the ground lessor is obligated to
assume the Mortgage Loan in accordance with
the terms and conditions of the Mortgage
Loan documents.
EXCEPTIONS TO REPRESENTATION (12)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
All LaSalle Loans The Mortgage Loan documents for each
Mortgage Loan only require the related
Mortgagor to comply in all material respects
with all applicable federal, state and local
environmental laws and regulations.
EXCEPTIONS TO REPRESENTATION (25)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
11 Southaven Towne Center The Mortgage Loan documents for each
18 Jade Pig-Rockford Mortgage Loan require the mortgagee to grant
19 Jade Pig -Breton (SC) releases of portions of each respective
20 Jade Pig - Xxxxxxxx Mortgaged Property subject to the terms and
21 Jade Pig - Kalamazoo D&W conditions set forth in the respective
82 Chesapeake Office Mortgage Loan documents.
18 Jade Pig-Rockford The Mortgaged Properties are
19 Jade Pig -Breton (SC) cross-collateralized and cross-defaulted. At
20 Jade Pig - Xxxxxxxx any time after December 15, 2007 and before
21 Jade Pig - Kalamazoo D&W January 1, 2016, up to 2 Mortgaged
Properties may be substituted (and the
mortgage lien encumbering such Mortgaged
Properties released) upon satisfaction of
certain terms and conditions set forth in
the respective Mortgage Loan documents.
42 Orland Park Crossing The Mortgaged Property is comprised of
multiple parcels. Any parcel may be
substituted for another parcel (and the
mortgage lien encumbering such parcel
released) upon satisfaction of certain terms
and conditions set forth in the Mortgage
Loan documents.
EXCEPTIONS TO REPRESENTATION (31)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
43 NNN Westpoint There is a pending SEC investigation against
77 Northwoods II the principal of a Mortgagor. The
investigation does not address either
Mortgaged Property. A guaranty was executed
for each Mortgage Loan by such principal to
indemnify the holder of each Mortgage Loan
from any losses resulting from such
investigation.
97 Arlington Towne Center There is a pending lawsuit against Mortgagor
seeking remediation of alleged violations of
the Americans with Disabilities Act. Funds
were escrowed at the closing of the Mortgage
Loan, in an amount equal to 110% of the
estimated cost to complete the work, in
order to correct the alleged violations.
Additionally, a non-recourse carveout was
added for any losses suffered by the holder
of the Mortgage Loan in the event that
Mortgagor fails to comply with the Americans
with Disabilities Act.
EXCEPTIONS TO REPRESENTATION (36)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
25 000 Xxxxxx Xxxxxx Xxxx The Mortgage Loan documents permit the
equity owners of Mortgagor to obtain future
mezzanine debt subject to the satisfaction
of certain conditions set forth in the
Mortgage Loan documents.
EXCEPTIONS TO REPRESENTATION (37)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
47 Brighton Park Apartments Each Mortgagor was not formed solely for the
00 Xxxxxx Xxxxx Properties purpose of owning and operating its
respective Mortgaged Property, however, as
of the origination of the Mortgage Loan the
organizational documents of each Mortgagor
were amended to provide substantially to the
effect that the sole purpose of each
Mortgagor shall be limited to the ownership
and operation of its respective Mortgaged
Property.
EXCEPTIONS TO REPRESENTATION (38)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
All LaSalle Loans Generally, the Mortgage Loan documents do
not have a non-recourse carveout for "fraud
or willful
material misrepresentation," but the
Mortgage Loan documents do include a
non-recourse carveout for "fraud, willful
misconduct or material misrepresentation".
11 Southaven Towne Center With respect to each Mortgage Loan, no
22 Co Bank Building natural person is liable for the
00 Xxxxx Xxxxx non-recourse carveouts.
42 Orland Park Crossing
43 NNN Westpoint
77 Northwoods II
17 600 West Xxxxxx The Mortgage Loan documents do not include a
non-recourse carveout for "fraud or willful
misrepresentation" or "misappropriation of
rents, insurance proceeds or condemnation
awards", but the Mortgage Loan documents do
include a non-recourse carveout for "fraud,
willful misconduct or material intentional
misrepresentation and "willful material
misappropriation or conversion of rents
received after and during the continuance of
an event of default, insurance proceeds or
condemnation awards".
00 XXX Xxxxxxxxx The respective Mortgage Loan documents do
77 Northwoods II not include a non-recourse carveout for
"fraud or willful misrepresentation", but
the respective Mortgage Loan documents do
include a non-recourse carveout for "fraud,
willful misconduct or material intentional
misrepresentation".
EXCEPTIONS TO REPRESENTATION (43)
MORTGAGE LOANS EXCEPTIONS
--------------------------------- --------------------------------------------
11 Southaven Towne Center Each Mortgagor is required to maintain
18 Jade Pig-Rockford terrorism insurance coverage only to the
19 Jade Pig -Breton (SC) extent that the premium for such coverage
20 Jade Pig - Xxxxxxxx does not exceed 150% of the then current
21 Jade Pig - Kalamazoo D&W aggregate amount of all insurance premiums.
Schedule B to Exhibit 2
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- ----------- ----------------------- ------------ --------------------------------- ----------------
00 XxXxxxx Xxxx Xxx- Xxxxxxxx $11,738,758 Jade Pig Ventures-Rockford, Xxxxx X. XxXxxxx
L.L.C.
Jade Pig Ventures-Breton Xxxxxxx, Xxxxx X. XxXxxxx
00 XxXxxxx Xxxx Xxx- Xxxxxx XX $ 6,144,063 L.L.C.
Jade Pig Ventures-Xxxxxxxx, Xxxxx X. XxXxxxx
20 LaSalle Jade Pig - Xxxxxxxx $ 3,891,740 L.L.C.
Jade Pig Ventures-Parkview, Xxxxx X. XxXxxxx
21 LaSalle Jade Pig- Kalamazoo D&W $ 3,201,307 L.L.C.
Schedule C to Exhibit 2
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
3-1
EXHIBIT 3
PRICING FORMULATION
Total Bond Proceeds $2,445,725,328
Less Expenses $ 4,200,620
--------------
Net Proceeds $2,449,925,948
Less Purchase Price of MS Loans
Discounted Value of MS Loans $1,846,030,231
Allocable Expense Amount for MS Loans $ 3,179,813
--------------
Purchase Price of MS Loans $1,849,210,045
Less Purchase Price of LaSalle Loans
Discounted Value of LaSalle Loans $ 402,997,949
Allocable Expense Amount for LaSalle Loans $ 685,122
--------------
Purchase Price of LaSalle Loans $ 403,683,071
Less Purchase Price of PCF II Loans
Discounted Value of PCF II Loans $ 196,697,148
Allocable Expense Amount for PCF II Loans $ 335,684
--------------
Purchase Price of PCF II Loans $ 197,032,832
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: LaSalle Bank National Association
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of February 15, 2007 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3 to
the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this __ day of February, 2007.
SELLER: LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND X.X. XXXXXX COMPANY, INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of February 15, 2007 (the "Mortgage Loan Purchase Agreement"), between
LaSalle Bank National Association ("LaSalle") and Xxxxxx Xxxxxxx Capital I Inc.
("Depositor"), LaSalle is selling certain multifamily and commercial mortgage
loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated
as of February 1, 2007 (the "Pooling and Servicing Agreement"), between the
Depositor, Capmark Finance Inc., as Master Servicer, X.X. Xxxxxx Company, Inc.
("JER") as Special Servicer, LaSalle Bank National Association, as Paying Agent,
Certificate Registrar and Authenticating Agent and Xxxxx Fargo Bank, National
Association ("WFB") as Trustee and Custodian, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, LASALLE has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, LaSalle does hereby make, constitute and appoint WFB,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and Servicing Agreement, LaSalle's true and lawful agent and
attorney-in-fact with respect to each Mortgage Loan in LaSalle's name, place and
stead: (i) to complete (to the extent necessary) and to cause to be submitted
for filing or recording in the appropriate public filing or recording offices,
all assignments of mortgage, deeds of trust or similar documents, assignments or
reassignments of rents, leases and profits, in each case in favor of the
Trustee, as set forth in the definition of "Mortgage File" in Section 1.1 of the
Pooling and Servicing Agreement, that have been received by the Trustee or a
Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of financing
statements and all other comparable instruments or documents with respect to the
Mortgage Loans which are customarily and reasonably necessary or appropriate to
assign agreements, documents and instruments pertaining to the Mortgage Loans,
in each case in favor of the Trustee as set forth in the definition of "Mortgage
File" in, and in accordance with Section 1.1 of, the Pooling and Servicing
Agreement, and to evidence, provide notice of and perfect such assignments and
conveyances in favor of the Trustee in the public records of the appropriate
filing and recording offices; and (ii) to file or record in the appropriate
public filing
5-1
or recording offices, all other Mortgage Loan documents to be recorded under the
terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents
which have not been submitted for filing or recordation by LaSalle on or before
the date hereof or which have been so submitted but are subsequently lost or
returned unrecorded or unfiled as a result of actual or purported defects
therein, in order to evidence, provide notice of and perfect such documents in
the public records of the appropriate filing and recording offices.
Notwithstanding the foregoing, this Limited Power of Attorney shall grant to WFB
and JER only such powers, responsibilities and authority as are set forth in
Section 2.1 of the Mortgage Loan Purchase Agreement.
LaSalle does also hereby make, constitute and appoint JER, acting solely in
its capacity as Special Servicer under the Pooling and Servicing Agreement,
LaSalle's true and lawful agent and attorney-in-fact with respect to the
Mortgage Loans in LaSalle's name, place and stead solely to exercise and perform
all of the rights, authority and powers of WFB as set forth in the preceding
paragraph in the event of the failure or the incapacity of WFB to do so for any
reason. As between JER and any third party, no evidence of the failure or
incapacity of WFB shall be required and such third party may rely upon JER's
written statement that it is acting pursuant to the terms of this Limited Power
of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as LaSalle's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as LaSalle might or could do if personally present, hereby ratifying
and confirming whatsoever such attorney-in-fact shall and may do by virtue
hereof; and LaSalle agrees and represents to those dealing with such
attorney-in-fact that they may rely upon this Limited Power of Attorney until
termination thereof under the provisions of Article III below. As between
LaSalle, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Trust Fund and the Certificateholders, neither the Trustee nor the Special
Servicer may exercise any right, authority or power granted by this Limited
Power of Attorney in a manner which would violate the terms of the Pooling and
Servicing Agreement, but any and all third parties dealing with either the
Trustee or the Special Servicer as LaSalle's attorney-in-fact may rely
completely, unconditionally and conclusively on the authority of the Trustee or
the Special Servicer, as applicable, and need not make any inquiry about whether
the Trustee or the Special Servicer is acting pursuant to the Pooling and
Servicing Agreement. Any purchaser, title insurance company or other third party
may rely upon a written statement by either the Trustee or the Special Servicer
that any particular Mortgage Loan or related mortgaged real property in question
is subject to and included under this Limited Power of Attorney and the Pooling
and Servicing Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on LaSalle and LaSalle's successors and
assigns.
This Limited Power of Attorney shall continue in full force and effect with
respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling and
Servicing Agreement;
with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under the
terms of the Pooling and Servicing Agreement;
with respect to the Trustee, the appointment of a receiver or conservator
with respect to the business of the Trustee, or the filing of a voluntary
or involuntary petition in bankruptcy by or against the Trustee;
with respect to the Special Servicer, the appointment of a receiver or
conservator with respect to the business of the Special Servicer, or the
filing of a voluntary or involuntary petition in bankruptcy by or against
the Special Servicer;
with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund;
with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance with its
terms; and
with respect to the Special Servicer, the occurrence of an Event of Default
under the Pooling and Servicing Agreement with respect to the Special
Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties
or obligations of LaSalle under the Mortgage Loan Purchase Agreement, and
nothing herein shall constitute a waiver of any rights or remedies under the
Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, LaSalle has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
February 28, 2007.
LASALLE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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ACKNOWLEDGEMENT
STATE OF )
) ss:
COUNTY OF )
On this 28th day of February, 2007, before me appeared __________________,
to me personally known, who, being by me duly sworn did say that he/she is the
_____________________ of LaSalle Bank National Association, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said __________________ acknowledged
said instrument to be the free act and deed of said corporation.
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Name:
-----------------------------------
Notary Public in and for said
County and State
My Commission Expires:
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