Exhibit 10.3
Capmark Mortgage Loan Purchase Agreement
See attached
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective as of November 1, 2007, between Capmark Finance Inc., a California
corporation ("Capmark"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation (the
"Depositor"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
Capmark desires to sell, assign, transfer, set over and otherwise
convey to the Depositor, without recourse, and the Depositor desires to
purchase, subject to the terms and conditions set forth herein, the multifamily
and commercial mortgage loans (or, with respect to the Xxxxxx Mill Loan and the
Hilton-Ontario Loan, the related Loan REMIC Regular Interests) (collectively,
the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule"), as such schedule may be amended from time to
time pursuant to the terms hereof.
The Depositor intends to create a trust (the "Trust"), the primary
assets of which will be a segregated pool of multifamily and commercial mortgage
loans that includes the Mortgage Loans. Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by the
Certificates (as defined below). Certain classes of the Certificates will be
rated by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and Fitch Ratings, Inc. (together, the "Rating Agencies"). The
Trust will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of November 1, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, Capmark Finance Inc.
and KeyCorp Real Estate Capital Markets Inc., as master servicers (each a
"Master Servicer" and collectively the "Master Servicers" ), Centerline
Servicing Inc., as special servicer (in such capacity, the "Special Servicer"),
and Xxxxx Fargo Bank, N.A., as trustee (in such capacity, together with any
successor as trustee, the "Trustee"), relating to the issuance of Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2007-C5 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings assigned to them
in the Pooling and Servicing Agreement as in full force and effect on the
Closing Date (as defined in Section 1 hereof). It is anticipated that the
Depositor will transfer the Mortgage Loans to the Trust contemporaneously with
its purchase of the Mortgage Loans hereunder.
The Depositor intends to sell certain classes of the Certificates
(collectively, the "Publicly Offered Certificates") to Credit Suisse Securities
(USA) LLC ("Credit Suisse Securities") and the other underwriters that are
parties to the Underwriting Agreement (as defined below) (collectively in such
capacity, the "Underwriters"), pursuant to an underwriting agreement dated as of
November 1, 2007 (the "Underwriting Agreement"), between the Depositor, Credit
Suisse Securities (USA) LLC, KeyBanc Capital Markets Inc. (other than with
respect to the Class A-4 Certificates), Capmark Securities Inc. and X.X. Xxxxxx
Securities Inc.. The Depositor intends to sell certain classes of the remaining
Certificates (the "Privately Offered Certificates") to Credit Suisse Securities,
pursuant to a certificate purchase agreement dated as of November 1, 2007 (the
"Certificate Purchase Agreement"), between the Depositor and Credit Suisse
Securities (in such capacity, the "Initial Purchaser"). The Publicly Offered
Certificates are more fully described in a prospectus dated November 1, 2007
(the "Base Prospectus"), and the supplement to the Base Prospectus dated
November 1, 2007 (the "Prospectus Supplement"; and, together with the Base
Prospectus, the "Prospectus"), as each may be amended or supplemented at any
time hereafter. The Privately Offered Certificates are more fully described in a
confidential offering circular dated November 1, 2007 (the "Confidential
Offering Circular"), as it may be amended or supplemented at any time hereafter.
Capmark will indemnify the Depositor, Credit Suisse Securities (both
in its capacity as an Underwriter and in its capacity as the Initial Purchaser),
the other Underwriters and certain related parties with respect to the
disclosure regarding the Mortgage Loans contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement dated November 1, 2007 (the "Indemnification Agreement"), among
Capmark, the Depositor, Credit Suisse Securities (both in its capacity as an
Underwriter and in its capacity as the Initial Purchaser) and the other
Underwriters.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1 Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the Seller's
transfer of the related servicing rights as provided in the Servicing Rights
Purchase Agreement dated as of November 1, 2007 (the "Servicing Rights Purchase
Agreement") between the Seller and Capmark Finance Inc. and subject to the terms
and conditions set forth herein, the Mortgage Loans, other than any rights of
the lender under the related Mortgage Loan Documents to establish and/or own a
successor borrower in connection with a defeasance of a Mortgage Loan. The
purchase and sale of the Mortgage Loans shall take place on November 14, 2007 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on the respective Due Dates for the
Mortgage Loans in November 2007 (individually and collectively, the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance, after
application of all payments of principal due on the Mortgage Loans on or before
the Cut-off Date, whether or not received, as set forth in the Mortgage Loan
Schedule attached hereto as Exhibit A. Seller shall sell to Depositor, and
Depositor shall purchase from Seller, the Mortgage Loans pursuant to this
Agreement for the Mortgage Loan Purchase Price (as defined herein), which
includes accrued interest on the Mortgage Loans at their respective Net Mortgage
Rates from and including the Cut-off Date to but not including the Closing Date,
and the Purchaser shall pay such purchase price to the Seller on the Closing
Date by wire transfer in immediately available funds to an account designated by
the Seller or by such other method as shall be mutually acceptable to the
parties hereto. The "Mortgage Loan Purchase Price" paid by Depositor shall be
equal to the amount that the Depositor and the Seller have mutually agreed upon.
SECTION 2 Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and the other conditions to the
Seller's obligations set forth herein, the Seller does hereby sell, assign,
transfer, set over and otherwise convey to the Purchaser, subject to the
Seller's transfer of the related servicing rights as provided in the Servicing
Rights Purchase Agreement, without recourse, all of the right, title and
interest of the Seller in and to the Mortgage Loans other than any rights of the
lender under the related Mortgage Loan Documents to establish and/or own a
successor borrower in connection with a defeasance of a Mortgage Loan.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 19, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or its designee the Mortgage File and any
Additional Collateral (other than reserve funds and escrow payments) with
respect to each Mortgage Loan; provided, however, that in connection with the
delivery of the Mortgage File, the original of each Letter of Credit (and any
related amendment or assignment), if any, shall be delivered to the applicable
Master Servicer and a copy thereof shall be delivered to the Trustee or its
designated Custodian. In addition, with respect to each Mortgage Loan as to
which any Additional Collateral is in the form of a Letter of Credit as of the
Closing Date, the Seller shall cause to be prepared, executed and delivered to
the issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to the Trustee (whether by actual assignment or by amendment of the
Letter of Credit) the Seller's rights as the beneficiary thereof and drawing
party thereunder. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipient of the items described in the second
preceding sentence (subject to the proviso to that sentence), and the designated
beneficiary under each Letter of Credit referred to in the preceding sentence,
shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded or filed document or original policy of title insurance which
is to be delivered as part of the related Mortgage File for any Mortgage Loan
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded or filed document has not been
returned by the appropriate recording or filing office or such original policy
of title insurance has not yet been issued, then the Seller shall deliver such
documents to the Purchaser or its designee, promptly upon the Seller's receipt
thereof.
In addition, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, within three (3) Business Days after the Closing Date, the
following items (except to the extent that any of the following items are to be
retained by a subservicer that will continue to act on behalf of the Purchaser
or its designee): (i) originals or copies of all financial statements,
appraisals, environmental/ engineering reports, leases, rent rolls, third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans, copies of all documents
required to be delivered by the Seller to the Purchaser or its designee as a
part of a Mortgage File and, to the extent they are not required to be a part of
a Mortgage File for any Mortgage Loan, originals or copies of all documents,
certificates and opinions in the possession or under the control of the Seller
that were delivered by or on behalf of the related Borrowers in connection with
the origination of the Mortgage Loans (provided that the Seller shall not be
required to deliver any attorney-client privileged communication or any other
documents or materials prepared by the Seller or its Affiliates solely for
internal credit analysis and/or other internal uses); and (ii) all unapplied
reserve funds and escrow payments in the possession or under the control of the
Seller that relate to the Mortgage Loans. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in clauses (i) and (ii) of the preceding sentence shall be the
applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related Borrower,
to be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this Section 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this Section 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c),
the Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that subject to the next paragraph,
the Seller shall not be responsible for actually recording or filing any such
assignments or other instruments of transfer. If the Seller receives written
notice that any such assignment or other instrument of transfer is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare or cause the preparation of a substitute therefor or
cure such defect, as the case may be; provided that the cost of such preparation
shall be borne by the Purchaser if the loss or return is caused by the
Purchaser's negligence. The Seller shall provide the Purchaser or its designee
with a power of attorney to enable it or them to record any loan documents that
the Purchaser has been unable to record. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipients of the power of
attorney referred to in the preceding sentence shall be the Trustee.
Notwithstanding the immediately preceding paragraph, the Seller may,
at its sole cost and expense, engage a third-party contractor to prepare or
complete in proper form for filing and recording any and all of the assignments
and other instruments described in the immediately preceding paragraph,
including assignments of UCC Financing Statements, with respect to the Mortgage
Loans, to submit such assignments and instruments for filing and recording, as
the case may be, in the applicable public filing and recording offices and to
deliver such assignments and instruments to the Trustee or its designee as such
assignments and other instruments (or certified copies thereof) are received
from the applicable filing and recording offices with evidence of such filing
and recording indicated thereon. However, in the event the Seller engages a
third-party contractor as contemplated in the immediately preceding sentence,
the rights, duties and obligation of the Seller pursuant to this Agreement
remain binding on the Seller.
(e) Upon the sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall, under GAAP, report its transfer of the Mortgage Loans to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser
in exchange for the consideration specified in Section 1 hereof. In connection
with the foregoing, upon sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall cause all of its financial and accounting records to reflect
such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
SECTION 3 Examination of Mortgage Loan Files and Due Diligence
Review. The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
(subject, however, to Section 7).
SECTION 4 Representations, Warranties and Covenants of the Seller
and the Purchaser.
(a) The Seller hereby makes, as of the date hereof, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for
the benefit of the Seller, each of the representations and warranties set forth
in Exhibit B-2.
(b) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, with respect to each Mortgage Loan,
each of the representations and warranties set forth in Exhibit C, subject,
however, to the exceptions set forth in Schedule C-1 hereto and Section 19.
(c) The Seller hereby represents and warrants, as of the date
hereof, to and for the benefit of the Depositor only, that the Seller has not
dealt with any broker, investment banker, agent or other person (other than the
Depositor, Credit Suisse Securities and the other Underwriters) who may be
entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser, with respect
to any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a defective Mortgage Loan pursuant to Section 7 of this
Agreement, each of the representations and warranties set forth in Exhibit C
(subject to any exceptions disclosed at such time) (with references in such
exhibits to "Closing Date" being deemed to be references to the "date of
substitution," references in such exhibits to "Cut-off Date" being deemed to be
references to the "most recent Due Date for the subject Replacement Mortgage
Loan on or before the date of substitution" and references in such exhibits to
"November 2007" and "April 2007" being deemed to be references to the "month of
substitution" and the "month preceding the month of substitution,"
respectively). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser for so long as any of the Mortgage
Loans remain outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
(f) At the Time of Sale (as defined in the Indemnification
Agreement), the information set forth in any Disclosure Information (as defined
in the Indemnification Agreement), as last forwarded to each prospective
investor at or prior to the date on which a contract for sale was entered into
with such prospective investor, (i) does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (ii) complies with the requirements of and contains all of
the applicable information required by Regulation AB (as defined in the
Indemnification Agreement); but only to the extent that (i) such information
regards the Mortgage Loans and is contained in the Master Tape (as defined in
the Indemnification Agreement) or, to the extent consistent therewith, the
Diskette (as defined in the Indemnification Agreement) or (ii) such information
regarding the Seller or the Mortgage Loans was contained in the Confidential
Offering Circular or the Prospectus Supplement under the headings "Summary of
Prospectus Supplement--Relevant Parties/Entities--Sponsors and Mortgage Loan
Sellers," "--Relevant Parties/Entities--Originators," "--The Underlying Mortgage
Loans" and "--Source of the Underlying Mortgage Loans," "Risk Factors,"
"Description of the Sponsors and Mortgage Loan Sellers" and "Description of the
Underlying Mortgage Loans" and such information does not represent an incorrect
restatement or an incorrect aggregation of correct information regarding the
Mortgage Loans contained in the Master Tape (as defined in the Indemnification
Agreement); provided that, the Seller makes no representation or warranty to the
extent that any such untrue statement or omission or alleged untrue statement or
omission was made as a result of an error in the manipulation of, or an error in
any calculations based upon, or an error in any aggregation (other than an
aggregation made in the Master Tape by the Seller) of, the numerical, financial
and/or statistical information regarding the Mortgage Loan Seller Information
(as defined in the Indemnification Agreement).
SECTION 5 Closing Documents. The Closing Documents shall consist of
the following:
(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) an Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an Assistant Secretary of the
Seller, in his or her individual capacity on behalf of the Seller, and
dated the Closing Date, and upon which the Depositor, Credit Suisse
Securities, the other Underwriters and the Rating Agencies (collectively,
for purposes of this Section 5, the "Interested Parties") may rely,
attaching thereto as exhibits (A) the resolutions of the board of
directors of the Seller authorizing the Seller's entering into the
transactions contemplated by this Agreement and (B) the organizational
documents of the Seller;
(iv) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of California not earlier
than 30 days prior to the Closing Date, and upon which the Interested
Parties may rely;
(v) a Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) a written opinion or opinions of counsel for the Seller (which
may include an opinion of in-house counsel), dated the Closing Date and
addressed to the Interested Parties and the respective parties to the
Pooling and Servicing Agreement, which opinion shall be in form reasonably
acceptable to the Purchaser and shall cover such corporate and other
matters as shall be reasonably required by the Purchaser;
(vii) one or more comfort letters from Ernst & Young LLP, certified
public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed
to, and in form and substance acceptable to, the Depositor, Credit Suisse
Securities, the other Underwriters and their respective counsel, stating
in effect that, using the assumptions and methodology used by the
Depositor, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the
corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results
of such calculations;
(viii) such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require;
(ix) a written certificate or certificates of the Purchaser dated
the Closing Date in form acceptable to the Seller confirming the
Purchaser's representations and warranties in Section 4 of this Agreement
as of the Closing Date, with the resolutions of the Purchaser authorizing
the transactions set forth herein, together with copies of the
organizational documents and certificate of good standing dated not
earlier than 30 days prior to the Closing Date of the Purchaser; and
(x) such other certificates of the Purchaser's officers, such
opinions of the Purchaser's counsel (which may include in-house counsel)
and such other documents required to evidence fulfillment of the
conditions set forth in this Agreement as the Seller or its counsel may
reasonably request.
SECTION 6 Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
location as agreed upon between the parties hereto, at 10:00 a.m., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of each of the Seller
and the Purchaser made pursuant to Section 4 of this Agreement (subject,
in the case of the Seller, to the exceptions set forth in Schedule C-1
hereto) shall be true and correct in all material respects as of the
Closing Date;
(ii) all documents specified in Section 5 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser
or its designee, all documents, funds and other assets required to be
delivered thereto on or before the Closing Date pursuant to Section 2 of
this Agreement;
(iv) the result of any examination of the Mortgage Files for, and
any other documents and records relating to, the Mortgage Loans performed
by or on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed by it after the Closing Date;
(vi) the Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement;
(vii) the Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7 Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 4
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 4
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases but shall not inure to the benefit of any subsequent transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit C hereto and made by the
Seller with respect to any Mortgage Loan listed on Exhibit A hereto, as of the
date hereof in Section 4(b) or as of the Closing Date, or with respect to any
Replacement Mortgage Loan, as of the date of substitution pursuant to Section
4(d) (in any such case, a "Breach"), or receives notice that (A) any document
required to be included in the Mortgage File related to any Mortgage Loan is not
in the Trustee's possession within the time period required herein or (B) such
document has not been properly executed or is otherwise defective on its face
(the circumstances in the foregoing clauses (A) and (B), in each case, a
"Defect" (including the "Defects" described below) in the related Mortgage
File), and if such Breach or Defect, as the case may be, materially and
adversely affects the value of the related Mortgage Loan or any successor REO
Loan or the interests of the Certificateholders therein (any Breach or Defect
that materially and adversely affects the value of the related Mortgage Loan or
the interests of the Certificateholders therein, a "Material Breach" and a
"Material Defect", respectively), then the Seller shall, upon request of the
Depositor, the Trustee, the Master Servicer or the Special Servicer, not later
than the earlier of 90 days from the receipt by the Seller of such request
(subject to the second succeeding paragraph, the "Initial Resolution Period"):
(i) cure such Material Breach or Material Defect, as the case may be, in all
material respects; (ii) repurchase the affected Mortgage Loan at the applicable
Purchase Price (as defined in the Pooling and Servicing Agreement); or (iii)
substitute, in accordance with the Pooling and Servicing Agreement, one or more
Qualified Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement) for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; provided, however, that if (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial Resolution
Period, (ii) such Material Breach or Material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a) 3) of the Code), (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Defect within the
Initial Resolution Period and (iv) the Seller has delivered to the Rating
Agencies, the Master Servicer, the Special Servicer and the Trustee an Officer's
Certificate that describes the reasons that the cure was not effected within the
Initial Resolution Period and the actions that it proposes to take to effect the
cure and that states that it anticipates the cure will be effected within the
additional 90-day period, then the Seller shall have an additional 90 days to
cure such Material Defect or Material Breach. With respect to any substitution
of one or more Qualified Substitute Mortgage Loans for a Mortgage Loan
hereunder, (A) no such substitution may be made in any calendar month after the
Determination Date for such month; (B) scheduled payments of principal and
interest due with respect to the Qualified Substitute Mortgage Loan(s) after the
related date of substitution shall be part of the Trust Fund; and (C) scheduled
payments of principal and interest due with respect to such Qualified Substitute
Mortgage Loan(s) on or prior to the related date of substitution shall not be
part of the Trust Fund, and the Seller shall be entitled to receive such
payments promptly following receipt by the Master Servicer or Special Servicer,
as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition of
Mortgage File in Section 1.01 of the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any intervening assignments required to create
an effective assignment to the Trustee on behalf of the Trust, unless there is
included in the Mortgage File a certified copy of the intervening assignment and
a certificate stating that the original intervening assignments were sent for
recordation; (e) the absence from the Mortgage File of any required original
letter of credit, provided that such Defect may be cured by any substitute
letter of credit or cash reserve on behalf of the related Borrower; or (f) the
absence from the Mortgage File of the original or a copy of any required ground
lease. The absence of a document checklist from a Mortgage File shall in no
event constitute a Material Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a) 3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of (a) notice to Seller of
the discovery of such Defect or Breach by any party to the Pooling and Servicing
Agreement or (b) Seller's discovery of such Defect or Breach (which period shall
not be subject to extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Breach or Defect is not capable of being so corrected or cured within
such period, then the Seller shall purchase or substitute for the affected
Mortgage Loan as provided in this Section 7. If (i) any Mortgage Loan is
required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed Mortgage Loan that is a part of a Mortgage Group (as
defined below) and (iii) the applicable Breach or Defect does not constitute a
Breach or Defect, as the case may be, as to any other Crossed Mortgage Loan in
such Mortgage Group (without regard to this paragraph), then the applicable
Breach or Defect, as the case may be, will be deemed to constitute a Breach or
Defect, as the case may be, as to any other Crossed Mortgage Loan in the
Mortgage Group for purposes of the above provisions, and the Seller will be
required to repurchase or substitute for such other Crossed Mortgage Loan(s) in
the related Mortgage Group in accordance with the provisions of this Section 7
unless the Crossed Mortgage Loan Repurchase Criteria would be satisfied if
Seller were to repurchase or substitute for only the affected Crossed Mortgage
Loans as to which a Material Breach or Material Defect had occurred without
regard to this paragraph, and in the case of either such repurchase or
substitution, all of the other requirements set forth in the Pooling and
Servicing Agreement applicable to a repurchase or substitution, as the case may
be, would be so satisfied. In the event that the Crossed Mortgage Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the Material Defect or Material Breach exists or to repurchase or
substitute for the aggregated Crossed Mortgage Loans. The determination of the
Special Servicer as to whether the Crossed Mortgage Loan Repurchase Criteria
have been satisfied shall be conclusive and binding in the absence of manifest
error. In the event that one or more of such other Crossed Mortgage Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria, the Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the related Breach or Defect exists or to repurchase or substitute
for all of the Crossed Mortgage Loans in the related Mortgage Group. The Seller
shall be responsible for the cost of (and, if so directed by the Special
Servicer, obtaining) any Appraisal required for the Special Servicer to
determine if the Crossed Mortgage Loan Repurchase Criteria have been satisfied,
so long as the scope and cost of such Appraisal has been approved by the Seller
(such approval not to be unreasonably withheld). For purposes of this paragraph,
a "Mortgage Group" is any group of Mortgage Loans identified as a Mortgage Group
on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the entire Mortgage Loan if the
Mortgaged Loan may, pursuant to the terms of the related Mortgage Loan
Documents, be severed to allow for the repurchase of a portion of the Mortgage
Loan representing the affected Mortgaged Property and the Mortgage Loan
remaining after such severance satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) the Seller provides an opinion of counsel to
the effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) such Seller pays
(or causes to be paid) the applicable release price required under the Mortgage
Loan Documents and, to the extent not reimbursable out of the release price
pursuant to the related Mortgage Loan Documents, any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released, and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans), shall promptly release the related Mortgage File and
Servicer File (and all other documents pertaining to such Mortgage Loan
possessed by the Depositor or the Trustee, as applicable, or on its behalf, but
excluding any draft documents, attorney/client privileged communications and
documents prepared by the Depositor or the Trustee, as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan Documents and shall deliver to Seller any escrow
payments and reserve funds held by it, or on its behalf, with respect to such
repurchased or replaced Mortgage Loan.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
listed on Exhibit A hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach or
Defect affecting such Mortgage Loan.
SECTION 8 Costs. Whether or not this Agreement is terminated, except
to the extent otherwise specifically provided in this Agreement, the costs and
expenses incurred in connection with the transactions herein contemplated shall
be allocated between the parties hereto as provided in any terms letter
agreement or other agreement between them which pertains to such transactions.
SECTION 9 Notices. All demands, notices and communications hereunder
shall be in writing, shall be effective only upon receipt by the Purchaser or
the Seller, as applicable, and shall be personally delivered, mailed, by
registered mail, postage prepaid, delivered by overnight mail or courier
service, or transmitted by facsimile and confirmed to the sender and (a) if to
the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx XxXxxxxxxx,
Esq., Legal & Compliance Department, Telecopy No.: (000) 000-0000, or such other
address or telecopy number as may be designated by the Purchaser to the Seller
in writing, or (b) if to the Seller, addressed to the Seller at 000 Xxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Telecopy No.: (215)
328-1775, or such other address as may be designated by the Seller to the
Purchaser in writing.]
SECTION 10 Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee the disclosure
required as to the Seller itself under Items 1117 and 1119 of Regulation AB and
Item 1.03 to Form 8-K. The Seller shall use commercially reasonable efforts to
deliver proposed disclosure language relating to any such event described under
Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee
and the Depositor within one (1) Business Day of become aware of such event
giving rise to such disclosure and in any event no later than two (2) Business
Days of the Seller becoming aware of such event. The obligation of the Seller to
provide the above-referenced disclosure materials will terminate upon the filing
of the Form 15 with respect to the Trust Fund as to that fiscal year in
accordance with Section 12.10(a) of the Pooling and Servicing Agreement. The
Seller hereby acknowledges that the information to be provided by it pursuant to
this Section will be used in the preparation of reports meeting the reporting
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Exchange Act.
SECTION 11 Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts (and by
each of the parties hereto on different counterparts), each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, and no other person will have any right or
obligation hereunder. Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 12 Characterization. The parties hereto agree that it is
their express intent that the conveyance contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by the Depositor to the Trustee of its interests in
the Mortgage Loans as contemplated by Section 17 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
Purchaser's security interest under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement. In connection with the foregoing, the Seller authorizes the
Purchaser to execute and file such UCC financing statements as the Purchaser may
deem necessary or appropriate to accomplish the foregoing.
SECTION 13 Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller delivered pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser, notwithstanding (1) any restrictive or qualified
endorsement or assignment in respect of any Mortgage Loan or (2) any termination
of this Agreement prior to Closing.
SECTION 14 Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or 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 is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE
PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMIT TO THE JURISDICTION OF
ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREE THAT ALL CLAIMS
WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE OR FEDERAL COURTS; (III) WAIVE, TO THE FULLEST POSSIBLE EXTENT,
THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREE THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 16 Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17 Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Depositor is expressly authorized to assign its rights and obligations under
this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder.
Notwithstanding any provision of this Agreement to the contrary, the Trustee
shall have no authority or right to assign or transfer its rights and
obligations under this Agreement, in whole or in part, to any other Person
(other than a successor Trustee), regardless of whether such assignment or
transfer is made in connection with the transfer of any Mortgage Loan by the
Trust as contemplated by the terms of the Pooling and Servicing Agreement, or
otherwise; provided, however, that the Trustee, for the benefit of the
registered holders and beneficial owners of the Certificates, is expressly
authorized to assign its rights and obligations under this Agreement with
respect to any Defaulted Mortgage Loan (as defined in Pooling and Servicing
Agreement) to the Majority Controlling Class Certificateholder (as defined in
the Pooling and Servicing Agreement) or its assignee in connection with its or
such assignee's purchase of such Mortgage Loan pursuant to Section 3.18(b) of
the Pooling and Servicing Agreement. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their respective successors and permitted assigns.
SECTION 18 Information. The Seller shall, for the purpose of
facilitating the issuance and sale of the Certificates by the Depositor, provide
the Purchaser with such information about the Seller, the Mortgage Loans and the
Seller's underwriting and servicing procedures as is (i) customary in commercial
mortgage loan securitization transactions, (ii) required by a Rating Agency or a
governmental agency or body or (iii) reasonably requested by the Purchaser for
use in a public or private disclosure document.
SECTION 19 Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
19 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 19. In addition, if there exists with respect to any
Cross-Collateralized Group only one original or certified copy of any document
referred to in the definition of "Mortgage File" in the Pooling and Servicing
Agreement and covering all the Mortgage Loans in such Cross-Collateralized
Group, the inclusion of the original or certified copy of such document in the
Mortgage File for any of the Mortgage Loans constituting a part of such
Cross-Collateralized Group shall be deemed an inclusion of such original or
certified copy in the Mortgage File for each Mortgage Loan included within such
Cross-Collateralized Group.
SECTION 20 Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CAPMARK FINANCE INC.
By: /s/ Xxxxxx Xxxxx
-----------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A - Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2007-C5
Combined Collateral
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C5
# Crossed Property Name
------- ------- -------------
5 00 Xxxx Xxxxxx
7 Commerce Corporate Plaza
13 Mystic Marriott
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxx - Xxxxxxx
24 Best Western Beach Resort - Monterey
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx
32 Charlotte Portfolio
32.1 Chateau Village Apartments
32.2 Emerald Bay Apartments
32.3 Xxxxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxxxxxxxx Xxxx
36 000 Xxxxx Xxxxxx
37 Residence Inn by Marriott - East Xxxxxxxxxx
46 Xxxxxx Mill
47 0000 Xxxxxx Xxxxxx (Hoist Fitness)
00 Xx. Xxxxx Xxxxxx and Xxxx Xxxxxxx'x Restaurant
00 Xxxxxxx Xxxxxxx Xxxxxx
00 Xxxxxxxxx Xxx & Xxxxxx - Xxxxxxx
00 Regency Evansville Portfolio
63.1 Town Center North
63.2 Fairlawn Shopping Center
63.3 Xxxx Center
63.4 Westgate Shopping Center
69 Walgreens Portfolio VI
69.1 Walgreens (Paragould)
69.2 Walgreens (Heath)
00 Xxxxx 00 Xxxxxxxx Xxxx
80 Westgate Center
83 UC Self Storage
88 Summer Tree Apartment Homes
90 Rosemont Marketplace
93 Courtyard by Marriott - Gulf Shores
94 Xxxxxxx Plaza
96 Xxxxxxx - Xxxx Xxxxxx
00 Xxxxxx Xxxxx MHP
100 Xxxxxxxx Office Building
104 Fly Away Parking
116 Kawaihae Shopping Center
117 000 Xxxxx Xxxxx
000 Xxxxx Medical Xxxxxx
000 Xxxxxx' X Xxxxxx
000 000 Xxxx Xxxxxxxxx Xxxxxx
169 Walgreens (Orlando)
Zip
# Address City State Code
----- ---------------------------------------------------------- ------------------- ----- -----
5 00 Xxxx Xxxxxx Xxx Xxxx XX 00000
7 00 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
13 000 Xxxxx Xxxx Xxxxxx XX 00000
15 0000 Xxx Xxxx Xxxxxxx XX 00000
16 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
24 0000 Xxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
29 0000-0000 Xxxxx 000 Xxxxxxx XX 00000
32
32.1 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
32.2 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
32.3 000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000
35 000-000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000
36 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000
37 00 Xxxxxx Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
46 0000 XX Xxxxx Xxxxxxx Xxxxxxxx XX 00000
47 0000 Xxxxxx Xxxxxx Xxx Xxxxx XX 00000
00 Xxx Xxxxx Xxxxxxxx and 000 Xxxxxx Xxxxxx Xx. Xxxxx XX 00000
50 0000 Xxxxxxx Xxx Xxxxx Xxxxxxx XX 00000
55 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
63
63.1 000-000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
63.2 0000 Xxxxxxx Xxxxxx and 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
63.3 0000-0000 Xxxxx Xxxxx Xxxx and 0000-0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
63.4 000-000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
69
69.1 0000 Xxxx Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
69.2 000 Xxxxxx Xxxx Xxxxx XX 00000
74 0000-0000 Xxxxx Xxxxx Xxxxxxxx XX 00000
80 0000 Xxxxxxxxxxxx Xxxx Xxxxxx XX 00000
83 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
88 0000 Xxxx Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
90 0000-0000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000
93 0000 Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
94 0000-0000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
96 000 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
97 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000
100 1331, 1347 and 0000 Xxxxx Xxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
104 0000 Xxxxxxxxxxxx Xxxx and 0000 Xxx Xxxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
116 00-0000 Xxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000
117 000-000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
122 0000 Xxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
125 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
147 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
169 0000 Xxxxx Xxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000
Initial Orig
Mortgage Original Cut-off Maturity Fee/ Interest Only Amort.
# Property Seller Balance Balance (1) Balance (2) Leasehold Term Term
----- --------------- ----------------- ----------------- ------------ ------------- ------------- -------------
5 Capmark $130,000,000 (16) $130,000,000 (16) $130,000,000 Fee 120 Interest Only
7 Capmark $84,000,000 $84,000,000 $80,219,284 Fee 36 360
13 Capmark $43,000,000 $43,000,000 $39,721,186 Fee 48 360
15 Capmark $36,900,000 $36,900,000 $36,900,000 Fee 120 Interest Only
16 Capmark $35,000,000 $35,000,000 $31,614,885 Fee 36 360
24 Capmark $30,000,000 $30,000,000 $28,192,610 Fee 60 360
29 Capmark $20,750,000 $20,750,000 $18,952,904 Fee 36 360
32 Capmark $19,500,000 $19,500,000 $18,862,162 Fee 24 360
32.1 $7,400,000 $7,400,000 $7,157,949 Fee
32.2 $6,925,000 $6,925,000 $6,698,486 Fee
32.3 $5,175,000 $5,175,000 $5,005,728 Fee
35 Capmark $17,800,000 $17,800,000 $15,416,664 Fee 0 360
36 Capmark $17,000,000 $17,000,000 $15,399,082 Fee 36 360
37 Capmark $16,000,000 $16,000,000 $14,591,412 Fee 36 360
46 Capmark $11,700,000 $11,700,000 $10,949,337 Fee/Leasehold 60 360
47 Capmark $11,560,000 $11,560,000 $11,560,000 Fee 84 Interest Only
48 Capmark $11,000,000 $10,992,042 $9,465,444 Fee 0 360
50 Capmark $10,300,000 $10,300,000 $9,272,150 Fee 36 360
55 Capmark $10,000,000 $10,000,000 $8,874,545 Fee 24 360
63 Capmark $9,300,000 $9,285,272 $8,030,746 Fee 0 360
63.1 $5,762,353 $5,753,227 $4,975,914 Fee
63.2 $1,677,647 $1,674,990 $1,448,683 Fee
63.3 $1,385,882 $1,383,687 $1,196,738 Fee
63.4 $474,118 $473,367 $409,411 Fee
69 Capmark $8,800,000 $8,800,000 $8,260,601 Fee 60 360
69.1 $4,654,059 $4,654,059 $4,368,787 Fee
69.2 $4,145,941 $4,145,941 $3,891,814 Fee
74 Capmark $8,115,000 $8,115,000 $8,115,000 Fee 60 Interest Only
80 Capmark $7,500,000 $7,370,526 $4,877,682 Fee 0 240
83 Capmark $7,125,000 $7,125,000 $6,697,451 Fee 60 360
88 Capmark $6,700,000 $6,700,000 $6,264,047 Fee 60 360
90 Capmark $6,600,000 $6,600,000 $6,144,573 Fee 60 360
93 Capmark $6,400,000 $6,400,000 $5,734,232 Fee 24 360
94 Capmark $6,350,000 $6,350,000 $5,923,165 Fee 60 360
96 Capmark $6,230,000 $6,230,000 $5,448,593 Fee 12 360
97 Capmark $6,200,000 $6,200,000 $5,854,427 Fee 60 360
100 Capmark $5,816,000 $5,816,000 $5,816,000 Fee 120 Interest Only
104 Capmark $5,500,000 $5,474,382 $5,026,149 Fee 0 300
116 Capmark $4,700,000 $4,696,593 $4,043,534 Leasehold 0 360
117 Capmark $4,550,000 $4,542,416 $3,904,980 Fee 0 360
122 Capmark $4,325,000 $4,325,000 $3,728,435 Fee 0 360
125 Capmark $4,203,000 $4,194,621 $3,500,594 Fee 0 360
147 Capmark $3,120,000 $3,120,000 $3,120,000 Fee 120 Interest Only
169 Capmark $2,270,000 $2,270,000 $2,146,197 Leasehold 60 360
Rem. Orig Rem. First
Amort. Term to Term to Interest Monthly Payment Maturity
# Term (1) Maturity (7) Maturity (1) (7) Rate Payment Date Date ARD (8)
----- ------------- ------------ ---------------- -------- --------------- --------- --------- -------
5 Interest Only 120 116 5.7710% $4,510,264 (16) 8/1/2007 7/1/2017 N/A
7 360 84 82 6.5200% $532,042 10/1/2007 9/1/2014 N/A
13 360 120 117 6.2400% $264,479 9/1/2007 8/1/2017 N/A
15 Interest Only 120 113 5.8700% $183,009 5/1/2007 4/1/2017 N/A
16 360 120 108 5.9800% $209,393 12/1/2006 11/1/2016 N/A
24 360 120 116 6.3500% $186,671 8/1/2007 7/1/2017 N/A
29 360 120 118 6.5700% $132,111 10/1/2007 9/1/2017 N/A
32 360 60 59 6.5000% $123,253 11/1/2007 10/1/2012 N/A
32.1
32.2
32.3
35 360 120 120 6.7400% $115,332 12/1/2007 11/1/2017 N/A
36 360 120 117 6.1200% $103,239 9/1/2007 8/1/2017 N/A
37 360 120 117 6.4800% $100,921 9/1/2007 8/1/2017 N/A
46 360 120 108 6.0200% $70,298 12/1/2006 11/1/2016 N/A
47 Interest Only 84 79 5.9300% $57,919 7/1/2007 6/1/2014 N/A
48 359 120 119 6.5000% $69,527 11/1/2007 10/1/2017 N/A
50 360 120 113 5.8000% $60,436 5/1/2007 4/1/2017 N/A
55 360 120 117 6.0600% $60,341 9/1/2007 8/1/2017 N/A
63 358 120 118 6.6300% $59,580 10/1/2007 9/1/2017 N/A
63.1
63.2
63.3
63.4
69 360 120 118 6.2700% $54,298 10/1/2007 9/1/2017 N/A
69.1
69.2
74 Interest Only 60 55 5.7880% $39,685 7/1/2007 6/1/2012 N/A
80 232 120 112 5.7800% $52,785 4/1/2007 3/1/2017 N/A
83 360 120 116 6.3700% $44,427 8/1/2007 7/1/2017 N/A
88 360 120 117 5.9600% $39,998 9/1/2007 8/1/2017 N/A
90 360 120 113 5.6500% $38,098 5/1/2007 4/1/2017 N/A
93 360 120 118 6.5000% $40,452 10/1/2007 9/1/2017 N/A
94 360 120 117 5.7900% $37,218 9/1/2007 8/1/2017 N/A
96 360 120 117 6.3100% $38,603 9/1/2007 8/1/2017 N/A
97 360 120 119 6.7400% $40,172 11/1/2007 10/1/2017 N/A
100 Interest Only 120 113 5.7707% $28,357 5/1/2007 4/1/2017 N/A
104 296 60 56 6.7000% $37,827 8/1/2007 7/1/2012 N/A
116 359 120 119 6.4930% $29,686 11/1/2007 10/1/2017 N/A
117 358 120 118 6.4100% $28,490 10/1/2007 9/1/2017 N/A
122 360 120 120 6.5700% $27,536 12/1/2007 11/1/2017 N/A
125 358 123 121 5.6100% $24,155 10/1/2007 12/1/2017 N/A
147 Interest Only 120 115 5.9100% $15,579 7/1/2007 6/1/2017 N/A
169 360 120 120 6.8500% $14,874 12/1/2007 11/1/2017 N/A
Administration Net Mortgage
# Defeasance (10) Fees Rate
----- --------------- -------------- ------------
5 Yes 0.04082% 5.730183%
7 Yes 0.02082% 6.499183%
13 Yes 0.02082% 6.219183%
15 Yes 0.10082% 5.769183%
16 Yes 0.03796% 5.942043%
24 Yes 0.02082% 6.329183%
29 No 0.10082% 6.469183%
32 Yes 0.03082% 6.469183%
32.1
32.2
32.3
35 Yes 0.02082% 6.719183%
36 No 0.07082% 6.049183%
37 Yes 0.02082% 6.459183%
46 Yes (26) 0.10082% 5.919183%
47 Yes 0.02082% 5.909183%
48 Yes 0.02082% 6.479183%
50 Yes 0.10082% 5.699183%
55 Yes 0.02082% 6.039183%
63 Yes 0.10082% 6.529183%
63.1
63.2
63.3
63.4
69 Yes 0.05082% 6.219183%
69.1
69.2
74 No 0.03082% 5.757183%
80 Yes 0.10082% 5.679183%
83 No 0.10082% 6.269183%
88 No 0.10082% 5.859183%
90 Yes 0.10082% 5.549183%
93 Yes 0.02082% 6.479183%
94 Yes 0.10082% 5.689183%
96 No 0.10082% 6.209183%
97 Yes 0.02082% 6.719183%
100 Yes 0.10082% 5.669883%
104 Yes 0.10082% 6.599183%
116 No 0.10082% 6.392183%
117 Yes 0.02082% 6.389183%
122 No 0.10082% 6.469183%
125 Yes 0.10082% 5.509183%
147 Yes 0.05082% 5.859183%
169 Yes 0.05082% 6.799183%
(A) The Underlying Mortgage Loans secured by CP Fairways at Woodfield, CP
Rolling Hills, CP Birchwood Pointe and CP Arbors of Lapeer Apartments are
cross-collateralized and cross-defaulted.
(B) The Underlying Mortgage Loans secured by Camelot Apartments and Crystal
Street Apartments are cross-collateralized and cross-defaulted.
(C) The Underlying Mortgage Loans secured by Grand Panama and Grand Panama
Building A2 are cross-collateralized and cross-defaulted.
(D) The Underlying Mortgage Loans secured by Ritz Coral Springs and
Chick-fil-A Building, Starbucks Outparcel and Chick-fil-A, Bradenton are
cross-collateralized and cross-defaulted.
(1) Based on a Cut-off date in November 2007.
(2) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans, there can be no assurance that the value of
any particular Mortgaged Property will not have declined from the original
appraisal value.
(3) For hospitality properties, the occupancy presented above is the occupancy
concluded by the respective loan seller at underwriting based on
historical performance and future outlook. For further description of the
underwriting criteria, please see "Description of the Sponsors" in the
accompanying free writing prospectus.
(4) In the case of cross-collateralized and cross-defaulted underlying
mortgage loans, the combined LTV is presented for each and every related
underlying mortgage loan.
(5) U/W NCF reflects the net cash flow after underwritten replacement
reserves, underwritten LC's & TI's and underwritten FF&E.
(6) DSCR is based on the amount of the monthly payments presented. In the case
of cross-collateralized and cross-defaulted underlying mortgage loans the
combined DSCR is presented for each and every related underlying mortgage
loan.
(7) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans.
(8) Anticipated Repayment Date.
(9) Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for (y)
payments
A%/(y) = A% Prepayment for (y) payments
0.0%/(z) = Prepayable at par for (z) payments
(10) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
(11) The 000 Xxxxxxxxx Xxxxxx Total Debt has an original balance of $600.0
million, which is comprised of the $310.0 million Mortgage Loan and the
$290.0 million Mezzanine Loan. A $200.0 million pari-passu portion of the
000 Xxxxxxxxx Xxxxxx Mortgage Loan is included in this transaction and as
such is expected to be the controlling interest with respect to the Total
Debt. The remaining portion of the Mortgage Loan totaling $110.0 million
will be syndicated outside the trust. All calculations are based on the
$310.0 million Mortgage Loan.
(12) Stabilized appraised value, cutoff LTV, and maturity LTV as of 6/1/2008
will be $250,000,000.00, 76.3%, and 76.3% respectively.
(13) With respect to the Gulf Coast Town Center Phases I & II mortgage loan, in
addition to the yield maintenance option, the loan has the option to be
prepaid by defeasance at any time after the date which is two years and 15
days from the "startup day" of the REMIC Trust.
(14) Letter of Credit in the amount of $8,200,000.00 will be provided by
KeyBank at the time the loan is sold to the Trust.
(15) In lieu of the Earnout Reserve and TI/LC Reserve deposits, the borrower
posted a letter of credit in the amount of $21 million. The letter of
credit corresponds to the existing disbursement requirements per the loan
documents. The first $8.5 million of the Earnout Reserve may be released
to the TI/LC Reserve once the current Debt Service Coverage Ratio reaches
1.20x on the interest only debt service. The remaining $12.5 million of
the Earnout Reserve may only be released once the current Debt Service
Coverage Ratio reaches 1.20x on debt service based on a thirty-year
amortization schedule, over a trailing 12-month period.
(16) The 00 Xxxx Xxxxxx Total Debt has an original balance of $925.0 million. A
$130.0 million pari-passu portion of the 00 Xxxx Xxxxxx Mortgage Loan is
included in this transaction. The remaining portion of the Mortgage Loan
totaling $795.0 million will be syndicated outside the trust. All
calculations are based on the $925.0 million Mortgage Loan.
(17) The Commerce Corporate Plaza Loan may be prepaid in part using certain
reserve amounts up to $9.1 million beginning in February 2008, such
prepayment to be accompanied by a yield maintenance payment by the
borrower.
(18) The loan is locked out for the first two years from the "startup day" of
the REMIC Trust, however, the borrower has the option to partially release
any two (2) properties during the lockout period. Based on the Allocated
Release Price per the Loan Agreement, a maximum of $17,766,536 can be
prepaid during the lockout period with yield maintenance.
(19) The $75.487 million is bridge equity structured as debt at the parent
level (the parent of the individual uncrossed SPE borrowers under the
related underlying mortgage loan and other mortgage loans not included in
the issuing entity), and is not secured by the related mortgaged real
property. The loan is secured by a Collateral Assignment of Special
Funding Agreement, which is simply a funding agreement with an indirect,
ultimate Australian parent entity that has contractually agreed to advance
funds to the Bridge Loan borrower as needed pursuant to the terms of the
funding agreement. Lender is also the beneficiary of a Guaranty Agreement
by Xxxxxxx & Xxxxx Real Estate Investments LLC, a Delaware limited
liability company, which guaranty backstops the enforceability of the
Collateral Assignment of Special Funding Agreement. The loan is scheduled
to mature March 31, 2008, but may be extended for 120 days. The loan is
interest only at LIBOR + 1.25% for the term of the loan.
(20) Stabilized appraised value, cutoff LTV, and maturity LTV as of 10/1/2010
will be $77,700,000.00, 63.8%, and 63.8% respectively.
(21) The Woodfield Crossing Total Debt is evidenced by a $41.44 million
mortgage loan, which will be an asset of the issuing entity and a $5.0
million mezzanine loan. The mezzanine loan is secured by a pledge of
ownership interest in the borrower, has market lender protections and is
subject to a market intercreditor agreement. All calculations are based on
the $41.44 million mortgage loan.
(22) With respect to the Woodfield Crossing mortgage loan, in addition to the
yield maintenance option, the loan has the option to be prepaid by
defeasance at any time after the date which is two years from the "startup
day" of the REMIC Trust. Additionally, the borrower may partially release
certain properties at any time during the term of the loan. Such partial
releases are made with no payment due to Lender. However, there is an LTV
requirement associated with such releases, for which the borrower may need
to make a partial prepayment in order to satisfy the requirement.
(23) The FF&E reserve increases to 3% in the second year of the loan term, and
4% thereafter.
(24) With respect to the Central New York Medical Center mortgage loan, in
addition to the yield maintenance option, the loan has the option to be
prepaid by defeasance at any time after the date which is two years and 15
days from the "startup day" of the REMIC Trust.
(25) The FF&E reserve increases to 4% in the second year of the loan term.
(26) With respect to the Xxxxxx Mill mortgage loan, in addition to the yield
maintenance option, the loan has the option to be defeased at any time on
and after the first business day following September 27, 2009, which is
the two-year anniversary of the "startup day" of the related single-asset
REMIC. In addition, the Xxxxxx Mill borrower has the option to pay a
declining fixed premium in lieu of yield maintenance on and after the 60th
payment due date.
(27) The Xxxxxxx - Xxxx Valley mortgage is structured with an $800,000 earnout
and an $80,000 paydown premium. The Cut-Off LTV, U/W DSCR and current DSCR
shown are net of earnout. Maturity LTV is shown at full leverage.
(28) The current LTV is based on the "As-is" Appraised Value. The Property is
expected to reach stabilization on 5/8/2009 with a stabilized appraised
value of $7.8 million, which will result in an LTV of 73.1%.
(29) Additionally, there is a subordinate $650,000 intercompany loan made to
the related borrower by one of its affiliates that is secured by the
related mortgaged real property. The lender under such loan is subject to
a subordination and standstill agreement, has no rights and only receives
cash flow to the extent available after any and all amounts due under the
mortgage loan included in the issuing entity.
(30) Beginning on the Payment date 11/11/13, the monthly contractual
replacement reserve will be $662.64.
(31) With respect to the West LA Self Storage mortgage loan, in addition to the
yield maintenance option, the loan has the option to be prepaid by
defeasance at any time after the date which is two years and 15 days from
the "startup day" of the REMIC Trust.
Exhibit B-1
Representations and Warranties with Respect to the Seller
The Seller hereby represents and warrants that, as of the date
hereof:
1. The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of California.
2. The execution and delivery by the Seller of, and the performance
by the Seller under, this Agreement, the execution (including, without
limitation, by facsimile or machine signature) and delivery of any and all
documents contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, do not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event that
the related transaction is deemed to constitute a loan secured by all or part of
the Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under
the conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
do not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
Exhibit B-2
Representations and Warranties with Respect to the Purchaser
The Purchaser hereby represents and warrants that, as of the date hereof:
1. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the
performance by the Purchaser under, this Agreement, and the consummation by the
Purchaser of transactions herein contemplated, do not: (a) violate the
Purchaser's organizational documents; or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound or which is applicable to
it or any of its assets, which default or breach, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of creditors'
rights generally, and (b) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof do not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
Exhibit C
Representations and Warranties with Respect to the Mortgage Loans
For purposes of these representations and warranties, the phrases
"to the knowledge of Seller" or "to the Seller's knowledge" or phrases of
similar import shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Seller or any servicer acting on its behalf
regarding the matters referred to, in each case without having conducted any
independent inquiry or due diligence with respect to such matters and without
any actual or implied obligation to make such inquiry or perform such due
diligence, other than making such inquiry or performing such due diligence as
would be customarily performed by prudent commercial or multifamily mortgage
lenders or servicers (as the case may be) with respect to similar mortgage loans
or mortgaged properties. All information contained in documents which are part
of or required to be part of a Mortgage File shall be deemed to be within the
knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the not taking of such action by, either the Seller or any servicer
acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in Schedule C-1 hereto and Section 19 of this Agreement, with respect
to the Mortgage Loans that, as of the date hereinbelow specified or, if no such
date is specified, as of the date hereof:
1. Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
2. RESERVED.
3. The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
4. The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
5. As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents,
the Borrower, lessee and/or operator was in possession of all licenses, permits,
and authorizations then required for use of the Mortgaged Property which were
valid and in full force and effect as of the origination date;
6. Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related Borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no valid offset, defense, counterclaim, or right of
rescission available to the related Borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
7. Each related Assignment of Leases creates a valid first priority
collateral assignment of, or a valid first priority lien or security interest
in, certain rights under the related lease or leases, subject only to a license
granted to the related Borrower to exercise certain rights and to perform
certain obligations of the lessor under such lease or leases, including the
right to operate the related leased property, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); no person other than the related Borrower owns any
interest in any payments due under such lease or leases that is superior to or
of equal priority with the lender's interest therein;
8. Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
9. Since origination (A) except as set forth in the related mortgage
file, such Mortgage Loan has not been modified, altered, satisfied, canceled,
subordinated or rescinded and (B) each related Mortgaged Property has not been
released from the lien of the related Mortgage in any manner which materially
interferes with the security intended to be provided by such Mortgage;
10. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance policy (as described
below). A UCC Financing Statement has been filed and/or recorded (or sent for
filing or recording) in all places necessary to perfect a valid security
interest in the personal property necessary to operate the Mortgaged Property;
any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid
and enforceable lien on property described therein, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
11. The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
12. The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
13. The lien of each related Mortgage is a first priority lien on
the fee and/or leasehold interest of the related Borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (C) the exceptions (general and specific)
and exclusions set forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current general use of the Mortgaged
Property or materially interferes with the security intended to be provided by
such Mortgage or with the related Borrower's ability to pay its obligations when
they become due or the value of the Mortgaged Property and (D) the rights of the
holder of any Companion Loan that is part of a related Serviced Loan Combination
to which any such Mortgage Loan belongs (items (A), (B), (C) and (D)
collectively, "Permitted Encumbrances"); the premium for such policy was paid in
full; such policy (or if it is yet to be issued, the coverage to be afforded
thereby) is issued by a title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is located (unless such state
is Iowa) and is assignable (with the related Mortgage Loan) to the Depositor and
the Trustee without the consent of or any notification to the insurer, and is in
full force and effect upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy and the Seller has
not undertaken any action or omitted to take any action, and has no knowledge of
any such act or omission, which would impair or diminish the coverage of such
policy;
14. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder, and no future advances
have been made which are not reflected in the related mortgage file;
15. Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves have been established
to cover the costs to remediate such damage and, as of the closing date for each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, there is no
proceeding pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or value of the
Mortgaged Property;
16. The Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
17. No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
18. Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
19. The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
20. Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loans or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement or any permitted
subservicing agreements;
21. All taxes and governmental assessments that became due and owing
prior to the date hereof with respect to each related Mortgaged Property and
that are or may become a lien of priority equal to or higher than the lien of
the related Mortgage have been paid or an escrow of funds has been established
and such escrow (including all escrow payments required to be made prior to the
delinquency of such taxes and assessments) is sufficient to cover the payment of
such taxes and assessments;
22. All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith and all such escrows and deposits are being
conveyed by the Seller to the Depositor and identified as such with appropriate
detail;
23. Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related Borrower to maintain all such insurance and, at such
Borrower's failure to do so, authorizes the lender to maintain such insurance at
the Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;
24. There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan; and, to the Seller's
knowledge, there is no (A) non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (B) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B) materially
and adversely affects the use or value of the Mortgage Loan or 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 or warranty made by the Seller in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in any Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A;
25. No Mortgage Loan has been more than 30 days delinquent in making
required payments since origination and as of the Cut-off Date no Mortgage Loan
is 30 or more days delinquent in making required payments;
26. (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). To the
Seller's knowledge, no Borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
27. At origination, each Borrower represented and warranted in all
material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report and, with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable environmental consulting firm
in connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material existence
of hazardous materials or, if any material non-compliance or material existence
of hazardous materials was indicated in any such report, then at least one of
the following statements is true: (A) funds reasonably estimated to be
sufficient to cover the cost to cure any material non-compliance with applicable
environmental laws or material existence of hazardous materials have been
escrowed by the related Borrower and held by the related mortgagee; (B) an
operations or maintenance plan has been required to be obtained by the related
Borrower; (C) the environmental condition identified in the related
environmental report was remediated or abated in all material respects prior to
the date hereof; (D) a no further action or closure letter was obtained from the
applicable governmental regulatory authority (or the environmental issue
affecting the related Mortgaged Property was otherwise listed by such
governmental authority as "closed"); (E) such conditions or circumstances
identified in the Phase I environmental report were investigated further and
based upon such additional investigation, an environmental consultant
recommended no further investigation or remediation; (F) a party with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $4,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impairment environmental insurance policy
was obtained with respect to each such Mortgage Loan and is a part of the
related mortgage file. Each of such environmental insurance policies is in full
force and effect, the premiums for such policies have been paid in full and the
Trustee is named as an insured under each of such policies. To the best of the
Seller's knowledge, in reliance on such environmental reports and except as set
forth in such environmental reports, each Mortgaged Property is in material
compliance with all applicable federal, state and local environmental laws, and
to the best of the Seller's knowledge, no notice of violation of such laws has
been issued by any governmental agency or authority, except, in all cases, as
indicated in such environmental reports or other documents previously provided
to the Rating Agencies; and the Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
28. (1) Each Mortgage Loan contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if, without
the consent of the holder of the Mortgage (and the Mortgage requires the
mortgagor to pay all fees and expenses associated with obtaining such consent),
the related Mortgaged Property is directly or indirectly transferred or sold,
and (2) except with respect to transfers of certain interests in the related
Borrower to persons already holding interests in the Borrower, their family
members, affiliated companies, for estate planning related purposes and other
transfers that satisfy certain criteria specified in the related Mortgage (which
criteria is consistent with the practices of prudent commercial mortgage
lenders), each Mortgage Loan with a Stated Principal Balance of over $20,000,000
also contains the provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the holder of
the Mortgage, (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent) a majority interest in the
related Borrower is directly or indirectly transferred or sold;
29. All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage or the related Borrower's operations at the
Mortgaged Property;
30. The information pertaining to the Mortgage Loans which is set
forth in the mortgage loan schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
31. With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, and
the related Mortgage does not also encumber the related lessor's fee interest in
such Mortgaged Property, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Seller represents and warrants
that:
(a) The ground lease or a memorandum regarding such ground lease has
been duly recorded. The ground lease permits the interest of the lessee to
be encumbered by the related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee, its successors or assigns in a
manner that would adversely affect the security provided by the related
Mortgage. To the Seller's best knowledge, there has been no material
change in the terms of the ground lease since its recordation, except by
any written instruments which are included in the related mortgage file;
(b) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(c) The ground lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the lender) that extends not less
than 20 years beyond the stated maturity of the related Mortgage Loan;
(d) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(e) The ground lease is assignable to the lender under the ground
lease and its assigns without the consent of the lessor thereunder;
(f) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any
existing condition which, but for the passage of time or giving of notice,
would result in a default under the terms of the ground lease;
(g) The ground lease or an ancillary agreement between the lessor
and the lessee, which is part of the Mortgage File, requires the lessor to
give notice of any default by the lessee to the lender;
(h) A lender is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default, before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(i) The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by an institutional
investor. The lessor is not permitted to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee in the relevant portion
of the Mortgaged Property subject to the ground lease for any reason, or
in any manner, which would adversely affect the security provided by the
related Mortgage;
(j) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(k) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(l) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
32. With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
33. With respect to Mortgage Loans that are cross-collateralized or
cross-defaulted, all other loans that are cross-collateralized or
cross-defaulted with such Mortgage Loans are being transferred to the Depositor
hereunder;
34. Neither Seller nor any affiliate thereof has any obligation to
make any capital contribution to any Borrower under a Mortgage Loan, other than
contributions made on or prior to the date hereof;
35. The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property;
36. There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, this Exhibit A or in the Exception Report to
this Agreement;
37. The Mortgage Loan Documents executed in connection with each
Mortgage Loan having an original principal balance in excess of $4,000,000
require that the related Borrower be a single-purpose entity (for this purpose,
"single-purpose entity" shall mean an entity, other than an individual, having
organizational documents which provide substantially to the effect that it is
formed or organized solely for the purpose of owning and operating one or more
Mortgaged Properties, is prohibited from engaging in any business unrelated to
such property and the related Mortgage Loan, does not have any assets other than
those related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan);
38. Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein and, except in connection with trade debt and
equipment financings in the ordinary course of Borrower's business, from
carrying any additional indebtedness, except, in each case, liens contested in
accordance with the terms of the Mortgage Loans or, with respect to each
Mortgage Loan having an original principal balance of less than $4,000,000, any
unsecured debt;
39. Each Borrower covenants in the Mortgage Loan Documents that it
shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
40. Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
41. Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the Borrower to maintain flood insurance,
or at such Borrower's failure to do so, authorizes the Lender to maintain such
insurance at the cost and expense of the Borrower;
42. To the knowledge of the Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law or may be substituted in
accordance with applicable law by the related mortgagee, and except in
connection with a trustee's sale after a default by the related Borrower, no
fees are payable to such trustee;
43. RESERVED.
44. Except as disclosed in the Exception Report to this Agreement,
to the knowledge of the Seller as of the date hereof, there was no pending
action, suit or proceeding, arbitration or governmental investigation against
any Borrower or Mortgaged Property, an adverse outcome of which would materially
and adversely affect such Borrower's ability to perform under the related
Mortgage Loan;
45. No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related Borrower, for,
or on account of, payments due on the Mortgage Loan;
46. To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the Note
was authorized to transact and do business in the jurisdiction in which each
related Mortgaged Property is located, or the failure to be so authorized did
not materially and adversely affect the enforceability of such Mortgage Loan;
47. All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
48. Except as disclosed in the Exception Report to this Agreement or
the Prospectus Supplement with respect to the Crossed Mortgage Loans and
Mortgage Loans secured by multiple Mortgaged Properties, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (A) payment in full or defeasance of
the related Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, (C) releases of unimproved out-parcels or (D) releases of
portions of the Mortgaged Property which will not have a material adverse effect
on the use or value of the collateral for the related Mortgage Loan;
49. Except as provided in paragraphs (xxxi)(J) and (K) above, any
insurance proceeds in respect of a casualty loss or taking will be applied
either to (A) the repair or restoration of all or part of the related Mortgaged
Property, with, in the case of all casualty losses or takings in excess of a
specified amount or percentage that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it) having
the right to hold and disburse such proceeds as the repair or restoration
progresses (except in any case where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
50. Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Trustee or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
51. [reserved];
52. Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property comply 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. With respect to any Mortgage Loan with a Stated Principal Balance as
of the Closing Date of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
53. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
54. With respect to any Mortgage Loan that pursuant to the Mortgage
Loan Documents can be defeased, (A) the Mortgage Loan cannot be defeased within
two years after the Closing Date, (B) the Borrower can pledge only "government
securities" (within the meaning of Section 2(a)(16) of the Investment Company
Act of 1940, as amended) in an amount sufficient to make all scheduled payments
under the Mortgage Loan when due, (C) the Borrower is required to provide
independent certified public accountant's certification that the collateral is
sufficient to make such payments, (D) the loan may be required to be assumed by
a single-purpose entity designated by the holder of the Mortgage Loan, (E) the
Borrower is required to provide an opinion of counsel that the Trustee has a
perfected security interest in such collateral prior to any other claim or
interest, (F) the Borrower is required to pay all Rating Agency fees associated
with defeasance (if rating confirmation is a specific condition precedent
thereto) and all other reasonable expenses associated with defeasance,
including, but not limited to, accountant's fees and opinions of counsel, (G)
with respect to any Significant Trust Mortgage Loan (as defined in the Pooling
and Servicing Agreement), the Borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under the Pooling
and Servicing Agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any Significant Trust Mortgage Loan
(as defined in the Pooling and Servicing Agreement), the Borrower must obtain
Rating Agency confirmation from each Rating Agency that the defeasance would not
result in such Rating Agency's withdrawal, downgrade or qualification of the
then current rating of any class of Certificate rated by such Rating Agency;
55. The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder or an affiliate thereof shall be liable to the
Seller for any losses incurred by the Seller due to (A) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (B) any
willful act of material waste, (C) any breach of the environmental covenants
contained in the related Mortgage Loan Documents, and (D) fraud by the related
Borrower; provided that, with respect to clause (C) of this sentence, an
indemnification against losses related to such violations or environmental
insurance shall satisfy such requirement.
With respect to the Mortgaged Property that secures the
Mortgage Loan identified on Annex A as "Best Western Monterey," (A) there exists
no damage, compromised integrity, deficiency, or defect in the portion of the
Mortgaged Property consisting of the sea retaining wall that would (i) result,
either directly or indirectly as a result of exposure to ocean wave impact,
ocean wave run-up, coastal erosion, beach scour and other dynamic coastal
processes, or other natural occurrences or events, in any damage to the hotel
improvements located on the Mortgaged Property, (ii) materially adversely affect
the operation of the Mortgaged Property as a hospitality property, (iii)
materially affect the appraised value of the Mortgaged Property, (iv) materially
interfere with the marketing and/or sale of the Mortgaged Property following
foreclosure and/or the Mortgage Note following a default, (v) prevent or
interfere with the repair, restoration or redevelopment as a hospitality
property of the Mortgaged Property to the specifications of the existing
Mortgage Property in the event of a partial or total casualty or condemnation,
(vi) violate any applicable law, ordinance or regulation, order, decree or
similar edict of any jurisdiction having authority over the Mortgaged Property,
and which affects the Mortgaged Property or (vii) pose any risk or danger to the
safety of persons using, occupying or otherwise located on the Mortgaged
Property as invitees or otherwise and (B) there is no obligation of the
Mortgagor to perform any repairs to the current sea wall or to construct a new
sea wall that have not been performed or constructed and the seawall is
currently structurally sound. Seller agrees and acknowledges that it will not
assert as a defense to any claim for breach of this representation the knowledge
of any party hereto or any certificateholder as to the accuracy and/or veracity
of this representation;
56. If such Mortgage Loan is an ARD Loan, it commenced amortizing on
its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; and (D) any cash flow from
the related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
57. Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same Borrower and to Borrowers
that are affiliates, accounted for more than 5.0% of the aggregate of the Stated
Principal Balances of all of the Mortgage Loans; and
58. The Seller has delivered to the Trustee or a custodian appointed
thereby, with respect to each Mortgage Loan, in accordance with Section 3 of
this Agreement, a complete Mortgage File.
Schedule C-1
Exceptions to Mortgage Loan Representations and Warranties
Reference is made to the Representations and Warranties set
forth in Exhibit C corresponding to the numbers set forth below:
Exceptions to Representations
1 (Prior Assignments of Mortgage), 8
(Assignment of Mortgage), 13 (Title Policy)
and 47 (Collateral)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
59200 00 Xxxx Xxxxxx The Mortgage Loan is one of thirteen pari
passu A notes. The related Mortgage, title
policy and other collateral securing the
Mortgage Loan have been assigned to the
trustee under the COMM 2007-C9 Pooling and
Servicing Agreement.
----------------------------------------------------------------------------------
Exceptions to Representation 18 (Whole Loan) and 33 (Cross-Collateralization)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
59200 00 Xxxx Xxxxxx The Mortgage Loan is one of thirteen pari
passu A notes. The holder of the Mortgage
Loan is subject to the rights of the holders
of the other pari passu companion A notes
pursuant to the 00 Xxxx Xxxxxx A Notes
Intercreditor Agreement. The other companion
A notes will not be transferred or assigned
to the Depositor.
----------------------------------------------------------------------------------
56836 Cornerstone Commerce The Mortgage Loan is the "A" note of an A/B
Center loan structure. The holder of the Mortgage
Loan is subject to the rights of the holder
of the "B" note that is secured by the same
Mortgaged Property pursuant to the related
intercreditor agreement. The related "B"
note will not be transferred or assigned to
the Depositor.
----------------------------------------------------------------------------------
Exceptions to Representation 20 (Servicing) and 22 (Escrows)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
59200 00 Xxxx Xxxxxx The Mortgage Loan and other companion A
notes are being serviced under the COMM
2007-C9 Pooling and Servicing Agreement and
are subject to the 00 Xxxx Xxxxxx A Notes
Intercreditor Agreement. All borrower
escrows and deposits were conveyed to the
depositor, trustee and servicer under the
COMM 2007-C9 Pooling and Servicing Agreement.
----------------------------------------------------------------------------------
Exceptions to Representation 23 (Insurance)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
n/a All Mortgage Loans Insurance policies are not issued nor
required to be issued by an insurer that
meets the requirements of the Pooling and
Servicing Agreement.
----------------------------------------------------------------------------------
57760 Walgreens (Orlando) Tenant is permitted to self-insure. No
58490 Walgreens Portfolio VI representations are made regarding insurance.
----------------------------------------------------------------------------------
58725 St. Xxxxx Xxxxxx and Xxxx Borrower is ground lessor and does not own
Shannons property improvements. No representations
are made regarding insurance.
----------------------------------------------------------------------------------
49788 Residence Inn - East The loan documents contain limits on the
54853 Xxxxxxxxxx amount of terrorism liability coverage that
00000 Xxxxxx Xxxxxxx is required to be maintained.
56960 Monterey Beach Hotel &
57263 Resort
57697 Xxxxxxxx Office Building
Kawaihae Shopping Center
58121 0000 Xxxxxx Xxxxxx (Hoist
58248 Fitness)
58672 Xxxxxxxxx Xxx - Xxxxxxx
00000 Mystic Marriott
Courtyard - Gulf Shores
59200 St. Xxxxx Xxxxxx and Xxxx
Shannons
00 Xxxx Xxxxxx
----------------------------------------------------------------------------------
59200 00 Xxxx Xxxxxx Xxx Xxxxxxxx Loan is one of thirteen pari
passu A notes. The related Mortgage,
insurance policies and other collateral
securing the Mortgage Loan have been
assigned to the trustee under the COMM
2007-C9 Pooling and Servicing Agreement. The
borrower is required to maintain the
insurance required under the DB lease.
Satisfaction of the insurance terms under
the lease is deemed satisfaction with the
insurance provisions in the loan documents.
The borrower insurance policy names the
original lender, its successors and or
assigns, and the tenant insurance policy
names the original lender, the borrower and
a borrower affiliates as holders of
additional interests thereunder.
----------------------------------------------------------------------------------
Exceptions to Representation 28 (Due on Transfer), Representation
36 (Existing subordinate mortgages and
mezzanine debt) and Representation 38 (Future
subordinate mortgages/unsecured debt)
--------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
--------------------------------------------------------------------------------
56797 0000 Xxxxxx Xxxxxx (Hoist Mezzanine financing secured by interests in
Fitness) the applicable borrower is permitted,
57831 Commerce Corporate Plaza provided the conditions in the applicable
59200 00 Xxxx Xxxxxx Mortgage Loan Agreement are satisfied.
--------------------------------------------------------------------------------
56836 Cornerstone Commerce Center Subordinate financing secured by interests
in the related Mortgaged Property exists.
--------------------------------------------------------------------------------
57434 Residence Inn by Marriott Subordinate unsecured financing is
(East Xxxxxxxxxx) permitted, provided the conditions in the
58121 Fairfield Inn - Orlando applicable Mortgage Loan Agreement are
58248 Courtyard - Gulf Shores satisfied.
58672 Mystic Marriott
--------------------------------------------------------------------------------
Exceptions to Representation 31 (Ground leases)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port The ground lessor has not agreed in writing
of Portland) that the ground lease may not be amended or
57263 Kawaihae Shopping Center terminated without lender's prior written
consent.
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port A portion of the Mortgaged Property is
of Portland) subject to a ground lease that expires prior
to 20 years following the Stated Maturity
Date.
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port Ground lessor consent is required for
of Portland) assignment by lessee of ground lease.
53028 Xxxxxx Mill Building
(Boardwalk)
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port Lender's rights to cure run concurrent with
of Portland) ground lessee.
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port Subleases require ground lessor consent.
of Portland)
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building Ground lease does not contain a provision as
(Boardwalk) to ground lessee's quiet enjoyment.
----------------------------------------------------------------------------------
57263 Kawaihae Shopping Center Condemnation proceeds are to be paid to
ground lessor.
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building (Port Ground lease does not contain a provision
of Portland) requiring lender consent of Lender prior to
53028 Xxxxxx Mill Building termination or modification of ground lease
57263 (Boardwalk) as a result of any casualty or partial
57760 Kawaihae Shopping Center condemnation.
Walgreens (Orlando)
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Building Ground lessor has not agreed to enter into a
57760 (Boardwalk) new lease upon termination of the ground
Walgreens (Orlando) lease for any reason, including rejection of
the ground lease in a bankruptcy proceeding.
----------------------------------------------------------------------------------
Exceptions to Representation 48 (Partial releases)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
56424 UC Self Storage The Mortgage Loan Documents provide for a
00000 Xxxxxxxxxxx Xxxxxxxx Xxxxxx partial release of the Mortgaged Property
56979 Plaza 85 Business Park upon certain conditions more fully set forth
57630 Regency Evansville in the applicable Mortgage Loan Documents.
58146 Portfolio Charlotte
58456 Portfolio
58490 Xxxxx Industrial Park
Walgreens Portfolio VI
----------------------------------------------------------------------------------
Exceptions to Representation 54 (Defeasance)
----------------------------------------------------------------------------------
ID# Mortgage Loan(s) Description of Exception
----------------------------------------------------------------------------------
53028 Xxxxxx Mill Defeasance may occur within two years
00000 Xxxxxx Xxxxxxx following the closing date of the
securitization.
----------------------------------------------------------------------------------
Exhibit D-1
Form of Certificate of the Secretary or an Assistant Secretary of the Seller
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-C5
CERTIFICATE OF [ASSISTANT] SECRETARY OF CAPMARK FINANCE INC.
I, _________________, hereby certify that I am a duly appointed
________________ Secretary of Capmark Finance Inc. (the "Corporation"), a
California corporation, and further certify on behalf of the Corporation as
follows:
1. Attached hereto as Exhibit A are true and correct copies of the
Certificate of Incorporation and By-Laws of the Corporation, which
Certificate of Incorporation and By-Laws are, on the date hereof, and have
been at all times since the formation of the Corporation, in full force
and effect.
2. Attached hereto as Exhibit B is a certificate of good standing of
the Corporation issued by the Secretary of State of the State of
California within thirty (30) days of the date hereof, and no event
(including, without limitation, any act or omission on the part of the
Corporation) has occurred since the date thereof which has affected the
good standing of the Corporation under the laws of the State of
California.
3. The Board of Directors of the Corporation, by unanimous written
consent dated __________, 20___ (the "Resolutions"), authorized, among
other things, all actions necessary to consummate transactions of the type
contemplated by the Mortgage Loan Purchase Agreement dated as of November
1, 2007 (the "Mortgage Loan Purchase Agreement"), between the Corporation
and Credit Suisse First Boston Mortgage Securities Corp., and to execute
and deliver documents and/or instruments such as the Mortgage Loan
Purchase Agreement and the Indemnification Agreement referred to therein.
Attached hereto as Exhibit C is a true and correct copy of such
Resolutions. The Resolutions have not been amended, modified, annulled or
revoked since they were adopted, and are in full force and effect as of
the date hereof, and the instruments authorized in the Resolutions were
executed pursuant thereto and in compliance therewith.
4. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Corporation and his
genuine signature is set forth opposite his name.
Name Office Signature
------------------- ------------- --------------------
--------------------
--------------------
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage Loan Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of November _____, 2007.
By:____________________________________
Name:
Title: [Assistant] Secretary
Exhibit E
Certificate of Incorporation and By-laws of Capmark Finance Inc.
[see attached]
Exhibit F
Certificate of Good Standing of Capmark Finance Inc.
[see attached]
Exhibit G
Resolutions of Capmark Finance Inc.
[see attached]
Exhibit H
Form of Certificate of the Seller
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-C5
CERTIFICATE OF CAPMARK FINANCE INC.
In connection with the execution and delivery by Capmark Finance
Inc. ("Capmark") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2007 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"), as purchaser, and
Capmark, as seller, and that certain Indemnification Agreement dated as of
November 1, 2007 (the "Indemnification Agreement" and, together with the
Mortgage Loan Purchase Agreement, the "Agreements"), between Capmark, the
Depositor, Credit Suisse Securities (USA) LLC (both in its capacity as an
Underwriter and in its capacity as Initial Purchaser) and the other
Underwriters, the undersigned hereby certifies on behalf of Capmark that (i) the
representations and warranties of Capmark in the Agreements are true and correct
in all material respects at and as of the date hereof (or, in the case of any
particular representation or warranty set forth in Exhibit C to the Mortgage
Loan Purchase Agreement, as of such other date provided for in such
representation or warranty) with the same effect as if made on the date hereof;
provided, however, that in the case of the representations and warranties set
forth in Exhibit C to the Mortgage Loan Purchase Agreement, such representations
and warranties are subject to the exceptions set forth in Schedule C-1 thereto
and Section 19 thereof; and (ii) Capmark has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part required
under the Mortgage Loan Purchase Agreement to be performed or satisfied at or
prior to the date hereof. Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in the Mortgage Loan Purchase
Agreement.
Certified this day of November, 2007.
CAPMARK FINANCE INC.
By:____________________________________
Name:
Title:
