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MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated December 20, 2007
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................3
2. CONVEYANCE OF MORTGAGE LOANS.............................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................11
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.......12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER...16
6. CLOSING.................................................................21
7. CLOSING DOCUMENTS.......................................................22
8. COSTS...................................................................25
9. NOTICES.................................................................25
10. SEVERABILITY OF PROVISIONS..............................................25
11. FURTHER ASSURANCES......................................................25
12. SURVIVAL................................................................25
13. GOVERNING LAW...........................................................26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................26
15. MISCELLANEOUS...........................................................26
16. ENTIRE AGREEMENT........................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Xxxx of Sale
Exhibit 4 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................18
Agreement......................................................................2
Certificate Purchase Agreement.................................................2
Certificates...................................................................2
Closing Date...................................................................3
Collateral Information........................................................11
Crossed Mortgage Loans........................................................17
Defective Mortgage Loan.......................................................17
Final Judicial Determination..................................................20
Indemnification Agreement.....................................................14
Initial Purchaser..............................................................2
Master Servicer................................................................2
Material Breach...............................................................16
Material Document Defect......................................................16
Memorandum.....................................................................2
MERS...........................................................................5
Mortgage File..................................................................4
Mortgage Loan Schedule.........................................................3
Mortgage Loans.................................................................2
Officer's Certificate..........................................................7
Other Mortgage Loans...........................................................2
Paying Agent...................................................................2
Pooling and Servicing Agreement................................................2
Private Certificates...........................................................2
Prospectus Supplement..........................................................2
Public Certificates............................................................2
Purchaser......................................................................2
Seller.........................................................................2
Special Servicer...............................................................2
Trust..........................................................................2
Trustee........................................................................2
Underwriters...................................................................2
Underwriting Agreement.........................................................2
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MORTGAGE LOAN PURCHASE AGREEMENT
(XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated December 20, 2007,
between Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC ("Seller") and Xxxxxx
Xxxxxxx Capital I Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of December 1, 2007 between Purchaser, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), Centerline
Servicing Inc., as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, National Association, as trustee (in such capacity, the "Trustee"),
custodian, paying agent (in such capacity, the "Paying Agent"), certificate
registrar and authenticating agent. In exchange for the Mortgage Loans and
certain other mortgage loans to be purchased by Purchaser (collectively, the
"Other Mortgage Loans"), the Trust will issue to the Depositor pass-through
certificates to be known as Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ13 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-M and Class A-J
Certificates (the "Public Certificates") will be sold by Purchaser to Xxxxxx
Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the "Underwriters"),
pursuant to an Underwriting Agreement, between Purchaser and the Underwriters,
dated December 20, 2007 (the "Underwriting Agreement"), and the Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and Class R-III
Certificates (the "Private Certificates") will be sold by Purchaser to Xxxxxx
Xxxxxxx & Co. Incorporated (in such capacity, the "Initial Purchaser") pursuant
to a Certificate Purchase Agreement, between Purchaser and the Initial
Purchaser, dated December 20, 2007 (the "Certificate Purchase Agreement"). The
Underwriters will offer the Public Certificates for sale publicly pursuant to a
Prospectus dated December 12, 2007, as supplemented by a Prospectus Supplement
dated December 20, 2007 (together, the "Prospectus Supplement"), and the
Initial Purchaser will offer the Private Certificates for sale in transactions
exempt from the registration requirements of the Securities Act of 1933 pursuant
to a Private Placement Memorandum dated December 20, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
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1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is December 1, 2007.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of $597,797,441. The sale of the
Mortgage Loans shall take place on December 28, 2007 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by Purchaser for the Mortgage Loans shall equal the amount set
forth as such purchase price in a letter dated as of the date hereof (the
"Purchase Price Side Letter"), between the parties to this Agreement and entered
into in connection with this Agreement and the issuance of the Certificates,
which purchase price excludes accrued interest and applicable deal expenses. The
purchase price shall be paid to Seller by wire transfer in immediately available
funds on the Closing Date.
1.2 On the Closing Date, Purchaser will assign to the Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14 hereof), and the Trustee shall succeed to such right, title and
interest in and to the Mortgage Loans and Purchaser's rights under this
Agreement (to the extent set forth in Section 14 hereof).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
December 1, 2007, will be executed by Seller and the Master Servicer, in and to
the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing
Date. The Mortgage Loan Schedule, as it may be amended from time to time on or
prior to the Closing Date, shall conform to the requirements of this Agreement
and the Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of the Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 4 in favor of the Trustee
and the Special Servicer to empower the Trustee and, in the event of the failure
or incapacity of the Trustee, the Special Servicer, to submit for recording, at
the expense of Seller, any mortgage loan documents required to be recorded as
described in the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage Files (so long as original counterparts have previously been delivered
to the Trustee). Seller agrees to reasonably cooperate with the Trustee and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of
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attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to Seller, but in no event
earlier than 18 months from the Closing Date, and (ii) the date (if any) on
which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee
shall submit such documents, at Seller's expense, after the periods set forth
above, provided, however, the Trustee shall not submit such assignments for
recording if Seller produces evidence that it has sent any such assignment for
recording and certifies that Seller is awaiting its return from the applicable
recording office. In addition, not later than the 30th day following the Closing
Date, Seller shall deliver to or on behalf of the Trustee each of the remaining
documents or instruments specified in Section 2.2 hereof (with such exceptions
as are permitted by this Section 2) with respect to each Mortgage Loan (each, a
"Mortgage File"). (Seller acknowledges that the term "without recourse" does not
modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by or on behalf of the Trustee in escrow on behalf of Seller
at all times prior to the Closing Date. The Mortgage Files shall be released
from escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of Xxxxx Fargo Bank, National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ13, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost note
affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned
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on or prior to the 45th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by Seller together with (i)
in the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original modification, consolidation or
extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of record in
favor of "Xxxxx Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-HQ13," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by Seller to be a true and
complete copy of the original Assignment of Leases submitted for recording,
together with (i) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by
Seller to be a true and
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complete copy of the original assignment submitted for recording, and (ii) an
original assignment of such Assignment of Leases, in recordable form, signed by
the holder of record in favor of "Xxxxx Fargo Bank, National Association, as
Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ13," which assignment may be effected in the related
Assignment of Mortgage, provided, if the related Mortgage has been recorded in
the name of MERS or its designee, no assignment of Assignment of Leases in favor
of the Trustee will be required to be recorded or delivered and instead, Seller
shall take all actions as are necessary to cause the Trustee to be shown as the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS
and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report binding on the title company with an original
Title Insurance Policy to follow within 180 days of the Closing Date;
2.2.9 (A) Uniform Commercial Code ("UCC") financing statements
(together with all assignments thereof) and (B) UCC-2 or UCC-3 financing
statements to the Trustee executed and delivered in connection with the Mortgage
Loan, provided, if the related Mortgage has been recorded in the name of MERS or
its designee, no such financing statements will be required to be recorded or
delivered and instead, Seller shall take all actions as are necessary to cause
the Trustee to be shown as the owner of the related Mortgage on the record of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS and shall deliver to the Master Servicer and the
Special Servicer evidence confirming that the Trustee is shown as the owner on
the record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the Primary Servicer (or the Master Servicer) on behalf of the Trustee, with
a copy to be held by the Trustee, and applied, drawn, reduced or
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released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that Seller has agreed (a) that the proceeds of
such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) or a reissued letter of credit and
(c) to indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of Seller to assign all rights to the letter
of credit hereunder including the right and power to draw on the letter of
credit). In the case of clause (B) above, any letter of credit held by the
Primary Servicer (or Master Servicer) shall be held in its capacity as agent of
the Trust, and if the Primary Servicer (or Master Servicer) sells its rights to
service the applicable Mortgage Loan, the Primary Servicer (or Master Servicer)
has agreed to assign the applicable letter of credit to the Trust or at the
direction of the Special Servicer to such party as the Special Servicer may
instruct, in each case, at the expense of the Primary Servicer (or Master
Servicer). The Primary Servicer (or Master Servicer) has agreed to indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
2.2.14 Third-party management agreements for all hotels and for such
other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to the Primary Servicer, the Master Servicer or the Trustee (as the
case may be) within 45 days of the Closing Date. In addition, a copy of any
ground lease shall be delivered to the Primary Servicer within 30 days of the
Closing Date. Any failure to deliver any ground lease shall constitute a
document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 hereof may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the extent
permitted by applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with Section 2.6 hereof, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements
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relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from Seller to Purchaser and from Purchaser to the
Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections 2.2.2,
2.2.3, 2.2.5 or 2.2.6 hereof, with evidence of recording thereon, solely because
of a delay caused by the public recording office where such document or
instrument has been delivered for recordation within such 45 day period, but
Seller delivers a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), to the Trustee within such 45 day period, Seller shall
then deliver within 90 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Trustee may consent to,
which consent shall not be unreasonably withheld so long as Seller is, as
certified in writing to the Trustee no less often than monthly, in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy).
2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled to
all scheduled payments of principal due on the Mortgage Loans after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to
Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of Seller, in the appropriate public
office for real property records, each assignment referred to in clauses 2.2.4
and 2.2.6(ii) above. Within 90 days following the Closing Date, Seller shall
deliver and Purchaser, the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of Seller, in the appropriate public
office for UCC financing statements, the assignment referred to in clause 2.2.9.
If any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, Seller shall prepare a substitute
therefor or cure such defect, and Seller shall, at its own expense (except in
the case of a document or instrument that is lost by the Trustee), record or
file, as the case may be, and deliver such document or instrument in accordance
with this Section 2.
2.7 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not required to be
delivered to the Trustee shall be shipped by Seller to or at the direction of
the Master Servicer, on behalf of Purchaser, on or prior to the 75th day after
the Closing Date, in accordance with Section 3.1 of the Primary Servicing
Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer (or in the
alternative, the Primary Servicer) shall include, to the extent required to be
(and actually) delivered to Seller
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pursuant to the applicable Mortgage Loan documents, copies of the following
items: the Mortgage Note, any Mortgage, the Assignment of Leases and the
Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement,
the insurance policies or certificates, as applicable, the property inspection
reports, any financial statements on the property, any escrow analysis, the tax
bills, the Appraisal, the environmental report, the engineering report, the
asset summary, financial information on the Borrower/sponsor and any guarantors,
any letters of credit, any intercreditor agreement and any Environmental
Insurance Policies. Delivery of any of the foregoing documents to the Primary
Servicer shall be deemed a delivery to the Master Servicer and satisfy Seller's
obligations under this subparagraph. Notwithstanding the foregoing provisions of
this Section 2.8, Seller shall not be required to deliver to any party any draft
documents, privileged communications, credit underwriting, legal or other due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
2.9 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in Purchaser and its
assigns, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of Seller
shall immediately vest in Purchaser and its assigns, and shall be delivered
promptly by Seller to or on behalf of either the Trustee or the Master Servicer
as set forth herein, subject to the requirements of the Primary Servicing
Agreement. Seller's and Purchaser's records shall reflect the transfer of each
Mortgage Loan from Seller to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be deemed to
be a grant by Seller to Purchaser of a security interest in all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment property
consisting of, arising from or relating to any of the following property:
the Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
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B. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.11 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the UCC (including,
without limitation, Section 9-313 thereof) as in force in the relevant
jurisdiction. Notwithstanding the foregoing, Seller makes no representation or
warranty as to the perfection of any such security interest.
2.12 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 The Seller hereby agrees to provide the Purchaser with prompt notice of
any information it receives which indicates that the transfer of each Mortgage
Loan from the Seller to the Purchaser may not be treated as a sale. The Seller
shall, to the extent consistent with this Agreement, take such reasonable
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the property described above, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Agreement. In such case, the Seller hereby authorizes the Master Servicer, the
Trustee and the Custodian to file all filings necessary to maintain the
effectiveness of any original filings necessary under the UCC as in effect in
any jurisdiction to perfect such security interest in such property. In
connection herewith, the Purchaser shall have all of the rights and remedies of
a secured party and creditor under the UCC as in force in the relevant
jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1 hereof, Purchaser shall not be required to purchase any Mortgage
Loan as to which any Mortgage Note (endorsed as described in clause 2.2.1
hereof) required to be delivered to or on behalf of the Trustee or the Master
Servicer pursuant to this Section 2 on or before the Closing Date is not so
delivered, or is not properly executed or is defective on its face, and
Purchaser's acceptance of the related Mortgage Loan on the Closing Date shall in
no way constitute a waiver of such omission or defect or of Purchaser's or its
successors' and assigns' rights in respect thereof pursuant to Section 5 hereof.
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3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or the Trustee to cause Seller to cure any
Material Document Defect or Material Breach (each as defined below), or to
repurchase or replace the defective Mortgage Loans pursuant to Section 5 hereof.
Notwithstanding the foregoing provisions of this Section 3.1, Seller shall not
be required to deliver to any party any draft documents, privileged
communications, credit underwriting, legal or other due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, the Initial Purchaser, the Trustee, the Special
Servicer and each Rating Agency to examine and audit all books, records and
files pertaining to the Mortgage Loans, Seller's underwriting procedures and
Seller's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place upon
reasonable prior advance notice at one or more offices of Seller during normal
business hours and shall not be conducted in a manner that is disruptive to
Seller's normal business operations. In the course of such examinations and
audits, Seller will make available to such representatives of any of Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Special Servicer and
each Rating Agency reasonably adequate facilities, as well as the assistance of
a sufficient number of knowledgeable and responsible individuals who are
familiar with the Mortgage Loans and the terms of this Agreement, and Seller
shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide Purchaser with
all material information regarding Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements as
provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller in
any material respect. Within 45 days after the Closing Date, Seller shall
provide the Master Servicer or Primary Servicer, if applicable, with any
additional information identified by the Master Servicer or Primary Servicer, if
applicable, as necessary to complete the CMSA Property File, to the extent that
such information is in Seller's possession or can reasonably be obtained by
Seller.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
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3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required, or in the case of the Memorandum, necessary, to be included in the
Free Writing Prospectus, the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Free Writing Prospectus, the Memorandum
or the Prospectus Supplement confidential information regarding Seller as
described in the preceding sentence, Purchaser shall provide to Seller a copy of
the proposed form of such disclosure prior to making such disclosure and Seller
shall promptly, and in any event within two Business Days, notify Purchaser of
any inaccuracies therein, in which case Purchaser shall modify such form in a
manner that corrects such inaccuracies. If Purchaser is required by law or court
order to disclose confidential information regarding Seller as described in the
second preceding sentence, Purchaser shall notify Seller and cooperate in
Seller's efforts to obtain a protective order or other reasonable assurance that
confidential treatment will be accorded such information and, if in the absence
of a protective order or such assurance, Purchaser is compelled as a matter of
law to disclose such information, Purchaser shall, prior to making such
disclosure, advise and consult with Seller and its counsel as to such disclosure
and the nature and wording of such disclosure and Purchaser shall use reasonable
efforts to obtain confidential treatment therefor. Notwithstanding the
foregoing, if reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to make such disclosure immediately, then
Purchaser shall be permitted to make such disclosure without prior review by
Seller.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of Purchaser and its assigns with respect to each Mortgage Loan as
of the date hereof (or as of such other date specifically set forth in the
particular representation and warranty) each of the representations and
warranties set forth on Exhibit 2 hereto, except as otherwise set forth on
Schedule A attached hereto, and hereby further represents, warrants and
covenants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of New York.
Seller has the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to Purchaser and has the
requisite power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
12
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in Section 4.1.3 hereof, any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of Seller, or in any
material impairment of the right or ability of Seller to carry on its business
substantially as now conducted.
4.1.5 There are no actions or proceedings against, or investigations
of, Seller pending or, to Seller's knowledge, threatened in writing against
Seller before any court, administrative agency or other tribunal, the outcome of
which could reasonably be expected to materially and adversely affect the
transfer of the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
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4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated December 20, 2007, between Seller,
Purchaser, the Underwriters and the Initial Purchaser (the "Indemnification
Agreement")) does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Notwithstanding
anything contained herein to the contrary, this subparagraph 4.1.7 shall run
exclusively to the benefit of Purchaser and no other party.
4.1.8 The Seller has complied with the disclosure requirements of
Regulation AB that arise from its role as "originator" and "sponsor" in
connection with the issuance of the Public Certificates.
4.1.9 The Seller hereby agrees to deliver to the Purchaser (or with
respect to any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor in such Other Securitization) and the Paying Agent
or the Trustee, as applicable, any Additional Form 10-D Disclosure, any
Additional Form 10-K Disclosure and any Form 8-K Disclosure Information set
forth next to the Seller's name on Schedule XV, Schedule XVI or Schedule XVII of
the Pooling and Servicing Agreement (in formatting reasonably appropriate for
inclusion in such form) (collectively, "Seller Reporting Information"); provided
that, the Seller Reporting Information shall not be exclusive of any additional
disclosure items specifically related to the Seller that may be added to Form
10-K, Form 10-D or Form 8-K subsequent to the date hereof that are required to
be included in the Exchange Act reports related to the Trust if the Depositor or
the Paying Agent provides the Seller with notice of such additional
requirements. The Seller shall use its best 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 Paying Agent or the
Trustee, as applicable, and the Purchaser within one Business Day and in any
event no later than two Business Days of the Seller becoming aware of such event
and shall provide disclosure relating to any other Seller Reporting Information
required to be disclosed by Seller pursuant to this Section 4.1.9 on Form 8-K,
Form 10-D or Form 10-K within two Business Days following the Purchaser's
request for such disclosure language. The obligation of the Seller to provide
the above-referenced disclosure materials shall be suspended (for so long as
neither the Trust nor, with respect to any Serviced Companion Mortgage Loan
related to a Serviced Pari Passu Mortgage sold to the Trust by the Seller, the
trust in the related Other Securitization, is subject to the reporting
requirements of the Exchange Act), as to any fiscal year, upon the Paying Agent
or the Trustee, as applicable, filing a Form 15 with respect to the Trust as to
that fiscal year in accordance with Section 13.8 of the Pooling and Servicing
Agreement or the reporting requirements with respect to the Trust under the
Securities Exchange Act of 1934, as amended, have otherwise been automatically
suspended; provided that, for the avoidance of doubt, the suspension of such
information reporting does not apply to Seller Reporting Information that is
required to be provided for the fiscal year prior to suspension of the Trust's
reporting requirements under the Securities Exchange Act of 1934 (including
Additional Form 10-K Disclosure required to be disclosed on the Form 10-K
related to the fiscal year preceding the year in which a Form 15 was filed). The
Purchaser shall provide the Seller with notice (which notice may be sent via
facsimile or by email) if the Paying Agent or the Trustee, as applicable, does
not file such Form 15 Suspension Notification pursuant to Section 13.8 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
14
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, will be
true and correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
15
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations
of, Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent
or other person, other than Seller, the Underwriters, the Initial Purchaser and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the
Trustee on behalf of the holders of the Certificates, whether directly or by way
of Purchaser's assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 hereof is not delivered as and
when required, not properly executed or is defective on its face, or if there is
a breach of any of the representations and warranties required to be made by
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case the
party discovering such breach or defect determines that either (i) the defect or
breach materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan or (ii) both (A) the defect or breach
materially and adversely affects the value of the Mortgage Loan and (B) the
Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage
Loan (any such defect described in the preceding clause (i) or (ii), a "Material
Document Defect" and any such breach described in the preceding clause (i) or
(ii), a "Material Breach"), the party determining that such Material Document
Defect or Material Breach exists shall promptly notify, in writing, the other
parties to the Pooling and Servicing Agreement and, if applicable, Seller;
provided that any breach of the representation and warranty contained in
paragraph (41) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield
16
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon
determining (or becoming aware of another party's determination) that any such
Material Document Defect or Material Breach exists (which determination shall,
absent evidence to the contrary, be presumed to be no earlier than three
Business Days prior to delivery of the notice to Seller referred to below), the
Master Servicer shall, and the Special Servicer may, request that Seller, not
later than 90 days from Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but Seller is
diligently attempting to effect such correction or cure, as certified by Seller
in an Officer's Certificate delivered to the Trustee, then the cure period will
be extended for an additional 90 days unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage
Loan and a Servicing Transfer Event has occurred as a result of a monetary
default or as described in clause (ii) or clause (v) of the definition of
"Servicing Transfer Event" in the Pooling and Servicing Agreement and (y) the
Material Document Defect was identified in a certification delivered to Seller
by the Trustee pursuant to Section 2.2 of the Pooling and Servicing Agreement
not less than 90 days prior to the delivery of the notice of such Material
Document Defect. The parties acknowledge that neither delivery of a
certification or schedule of exceptions to Seller pursuant to Section 2.2 of the
Pooling and Servicing Agreement or otherwise nor possession of such
certification or schedule by Seller shall, in and of itself, constitute delivery
of notice of any Material Document Defect or knowledge or awareness by Seller,
the Master Servicer or the Special Servicer of any Material Document Defect
listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller otherwise fails
to correct or cure within the above cure periods, Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan (or interest therein) from Purchaser or its assignee
at the Purchase Price as defined in the Pooling and Servicing Agreement, or (ii)
if within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option replace,
without recourse, any Mortgage Loan or REO Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such Material Document
Defect or Material Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code), then notwithstanding the previous
sentence or the previous paragraph, repurchase must occur within 85 days from
the date Seller was notified of the defect. Seller agrees that any substitution
shall be completed in accordance with the terms and conditions of the Pooling
and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the
17
applicable document defect or breach does not constitute a Material Document
Defect or Material Breach, as the case may be, as to such Crossed Mortgage Loans
(without regard to this paragraph), then the applicable document defect or
breach (as the case may be) shall be deemed to constitute a Material Document
Defect or Material Breach, as the case may be, as to each such Crossed Mortgage
Loan for purposes of the above provisions, and Seller shall be obligated to
repurchase or replace each such Crossed Mortgage Loan in accordance with the
provisions above, unless, in the case of such breach or document defect, (A)
Seller provides a Nondisqualification Opinion to the Trustee at the expense of
Seller if, in the reasonable business judgment of the Trustee, it would be usual
and customary in accordance with industry practice to obtain a
Nondisqualification Opinion and (B) both of the following conditions would be
satisfied if Seller were to repurchase or replace only those Mortgage Loans as
to which a Material Breach or Material Document Defect had occurred without
regard to this paragraph (the "Affected Loan(s)"): (i) the debt service coverage
ratio for all those Crossed Mortgage Loans (excluding the Affected Loan(s)) for
the four calendar quarters immediately preceding the repurchase or replacement
is not less than the lesser of (A) 0.10x below the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loans(s)) set forth
in Appendix II to the Prospectus Supplement and (B) the debt service coverage
ratio for all such Crossed Mortgage Loans (including the Affected Loan(s)) for
the four preceding calendar quarters preceding the repurchase or replacement,
and (ii) the loan-to-value ratio for all such Crossed Mortgage Loans (excluding
the Affected Loan(s)) is not greater than the greater of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for all such
Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix II
to the Prospectus Supplement plus 10% and (B) the loan-to-value ratio for all
such Crossed Mortgage Loans (including the Affected Loans(s)), at the time of
repurchase or replacement. The determination of the Master Servicer as to
whether the conditions set forth above have been satisfied shall be conclusive
and binding in the absence of manifest error. The Master Servicer will be
entitled to cause to be delivered, or direct Seller to (in which case Seller
shall) cause to be delivered to the Master Servicer, an Appraisal of any or all
of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of Seller if the scope and cost of the Appraisal is approved by Seller
(such approval not to be unreasonably withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan in the
manner prescribed above while the Trustee (as assignee of Purchaser) continues
to hold any Crossed Mortgage Loan, Seller and Purchaser hereby agree to forebear
from enforcing any remedies against the other's Primary Collateral but may
exercise remedies against the Primary Collateral securing their respective
Mortgage Loans, including with respect to the Trustee, the Primary Collateral
securing the Mortgage Loans still held by the Trustee, so long as such exercise
does not impair the ability of the other party to exercise its remedies against
its Primary Collateral. If the exercise of remedies by one party would impair
the ability of the other party to exercise its remedies with respect to the
Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies until the
loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Pooling and Servicing Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing the Crossed
18
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B hereto are intended third-party beneficiaries
of the provisions set forth in this paragraph and the preceding paragraph. The
provisions of this paragraph and the preceding paragraph may not be modified
with respect to any Mortgage Loan without the related Mortgagor's consent.
5.6 Any of the following document defects shall be conclusively presumed to
materially and adversely affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage by the local authority with which
the Mortgage was recorded; or (c) the absence from the Mortgage File of the item
specified in paragraph 2.2.8. If any of the foregoing Material Document Defects
is discovered by the Custodian (or the Trustee if there is no Custodian), the
Trustee (or as set forth in Section 2.3(a) of the Pooling and Servicing
Agreement, the Master Servicer) will take the steps described elsewhere in this
Section, including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure of the Material Document
Defect or repurchase or replacement of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a
correction or cure of such Material Document Defect or Material Breach, (ii) to
repurchase the affected Mortgage Loan from Purchaser or its assignee or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (x) the period of time
provided for Seller to correct, repurchase or cure has expired and (y) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
the Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. In the event of any such modification and work-out, Seller
shall be obligated to repurchase the Mortgage Loan as modified and the Purchase
Price shall include any Work-Out Fee paid to the Special Servicer up to the date
of repurchase plus the present value (calculated at a discount rate equal to the
applicable Mortgage Rate) of the Work-Out Fee that would have been payable to
the Special Servicer in respect of such Mortgage Loan if the Mortgage Loan
performed in accordance with its terms to its Maturity Date, provided that no
amount shall be paid by Seller in respect of any Work-Out Fee if a Liquidation
Fee already comprises a portion of the Purchase Price.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or
REO Properties, as applicable, in accordance with Section 9.36 of the Pooling
and Servicing Agreement.
19
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property (or interest therein) at the Purchase Price. After a final liquidation
of the Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction
issues a final order after the expiration of any applicable appeal period that
Seller is or was obligated to repurchase the related Mortgage Loan or REO
Mortgage Loan (or interest therein) (a "Final Judicial Determination") or Seller
otherwise accepts liability, then, but in no event later than the Termination of
the Trust pursuant to Section 9.30 of the Pooling and Servicing Agreement,
Seller will be obligated to pay to the Trust the difference between any
Liquidation Proceeds received upon such liquidation in accordance with the
Pooling and Servicing Agreement (including those arising from any sale to
Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, the Special Servicer shall not receive a
Liquidation Fee from Seller (but may collect such Liquidation Fee from the
related Liquidation Proceeds as otherwise provided herein); provided, however,
that in the event Seller is obligated to repurchase the Mortgage Loan or REO
Mortgaged Property (or interest therein) after a final liquidation of such
Mortgage Loan or REO Property pursuant to the immediately preceding paragraph,
an amount equal to any Liquidation Fee (calculated on the basis of Liquidation
Proceeds) payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged Property.
Except as expressly set forth above, no Liquidation Fee shall be payable in
connection with a repurchase of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any representation or
warranty or covenant by Seller set forth in this Agreement other than those set
forth in Exhibit 2.
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 in Exhibit 2 hereto,
and as a result the payments, by a Mortgagor, of reasonable costs and expenses
associated with the defeasance or assumption of a Mortgage Loan are insufficient
causing the Trust to incur an Additional Trust Expense in an amount equal to
such reasonable costs and expenses not paid by such Mortgagor, Seller hereby
covenants and agrees to reimburse the Trust within 90 days of the receipt of
notice of such breach in an amount sufficient to avoid such Additional Trust
Expense. The parties hereto acknowledge that such reimbursement shall be
Seller's sole obligation with respect to the breach discussed in the previous
sentence.
5.13 Notwithstanding the foregoing, Seller has retained the right to designate
and establish the successor borrower and to purchase or cause the purchase on
behalf of the related borrower of
20
the related defeasance collateral ("MSMCH Defeasance Rights and Obligations").
In the event the Master Servicer receives notice of a defeasance request with
respect to a Mortgage Loan subject to defeasance, the Pooling and Servicing
Agreement provides that the Master Servicer shall provide upon receipt of such
notice, written notice of such defeasance request to Seller or its assignee.
Until such time as Seller provides written notice to the contrary, notice of a
defeasance of a Mortgage Loan with MSMCH Defeasance Rights and Obligations shall
be delivered to MSMCH pursuant to the notice provisions of the Pooling and
Servicing Agreement.
5.14 The Pooling and Servicing Agreement shall provide that the Trustee (or the
Master Servicer or the Special Servicer on its behalf) shall give written notice
promptly (but in any event within three Business Days) to Seller of its
determination that any Material Document Defect or Material Breach exists (which
determination shall, absent evidence to the contrary, be presumed to be no
earlier than three Business Days prior to delivery of the notice) and prompt
written notice to Seller in the event that any Mortgage Loan becomes a Specially
Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.15 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to Seller all
Mortgage Loan documents with respect to such Mortgage Loan, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee shall be endorsed and assigned to Seller in the same manner such
that Seller shall be vested with legal and beneficial title to such Mortgage
Loan, in each case without recourse, including any property acquired in respect
of such Mortgage Loan or proceeds of any insurance policies with respect
thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such
forms as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser
and its affiliates pursuant to Section 3 hereof shall be satisfactory to
Purchaser and its affiliates in their sole determination and the parties shall
have agreed to the form and contents of Seller's Information
21
to be disclosed in the Free Writing Prospectus, the Memorandum and the
Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings
by each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement
and the Initial Purchaser shall not have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage
Loans pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller
and dated the Closing Date, and upon which Purchaser and its successors and
assigns may rely, to the effect that: (i) the representations and warranties of
Seller in this Agreement are true and correct in all material respects on and as
of the Closing Date with the same force and effect as if made on the Closing
Date, provided that any representations and warranties made as of a specified
date shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 A certificate of existence for Seller from the Secretary of State of New
York dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the
22
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under New York law and has full
corporate or organizational power and authority to enter into and perform its
obligations under this Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any federal court
or governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement
by Seller, nor the consummation by Seller of any of the transactions
contemplated by the terms of this Agreement (A) conflicts with or results in a
breach or violation of, or constitutes a default under, the organizational
documents of Seller, (B) to the knowledge of such counsel, constitutes a default
under any term or provision of any material agreement, contract, instrument or
indenture, to which Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) conflicts with or results in a breach or violation of any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over Seller or its assets, except
where in any of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation of the
transactions contemplated hereby by Seller or materially and adversely affect
its ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which Seller is a party, or
threatened against Seller, (a) asserting the invalidity of this Agreement or (b)
which materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other
23
laws relating to or affecting the rights of creditors generally, (3) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (4) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
7.8 A "10b-5" opinion of counsel addressed to the Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the Underwriters,
as to the disclosure provided by Seller to Purchaser in connection with the
Certificates.
7.9 An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as defined in Regulation AB) in connection
with the Certificates.
7.10 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Free Writing Prospectus, the
Memorandum and the Prospectus Supplement agrees with the records of Seller.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 An officer's certificate of Purchaser, dated the Closing Date, with the
resolutions of Purchaser authorizing the transactions described herein attached
thereto, together with certified copies of the charter, by-laws and certificate
of good standing of Purchaser dated not earlier than 30 days prior to the
Closing Date.
7.13 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 3 and the
Purchase Price Side Letter.
24
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate letter of understanding or other instrument
entered into in connection with this Agreement and the issuance of the
Certificates.
9. NOTICES. All communications provided for or permitted hereunder shall be
in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee, or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to Purchaser, addressed to Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend (with a copy to the
attention of Xxxxxxx Xxxxxx at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000) (or such other address as may hereafter be furnished in writing by
Purchaser), or if (ii) to Seller, addressed to Seller at Xxxxxx Xxxxxxx Mortgage
Capital Holdings LLC, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx (or to such other address as may hereafter be furnished
in writing by Seller).
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty
or covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations, warranties
and agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
25
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure
to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the Purchase
Price Side Letter, Xxxx of Sale, the Indemnification Agreement and the Pooling
and Servicing Agreement), and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
26
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
o Mortgage Loan Seller
o Loan Number
o Property Name
o Street Address
o City
o State
o Date of Maturity
o Cut-off Date Balance
o Note Date
o Original Term to Maturity or ARD
o Remaining Term
o Original Amortization
o Rate
o ARD Loan (Yes/No)
2-1
MSMCH
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN SELLER LOAN NO. PROPERTY NAME STREET ADDRESS CITY STATE DATE OF MATURITY BALANCE
------------------------------------------------------------------------------------------------------------------------------------
MSMCH 0 00xx Xxxxxx Xxxxxx 000-000 Xxxx Xxx Xxxx XX 11/01/2010 $79,953,721
00xx Xxxxxx
MSMCH 3 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxx Xxxx XX 10/01/2017 $78,936,298
Street
MSMCH 0 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxxxxx XX 12/08/2017 $76,000,000
Xxxxxxx Street
MSMCH 5 Two Xxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxxx XX 10/01/2017 $52,000,000
Road
MSMCH 6 Crossroads Town 6436-6592 Las Vegas NV 12/08/2017 $52,000,000
Center North Decatur
Boulevard
MSMCH 0 Xxxxxx Xxxxxx Xxxxxxxx Prince MD 10/08/2017 $24,300,000
Shopping Center Island Road at Xxxxxxxxx
Xxxxxxxx Road
MSMCH 12 Hilton Garden Inn - 000 Xxxx Xxxxxx Xxxxxxxxxx XX 12/01/2017 $20,925,000
Portsmouth
MSMCH 00 Xxxxxxx Xxxxx Xxxxxx Xxx Xxxxxx XX 01/01/2018 $20,713,000
Property
MSMCH 20 000 Xxxxx Xxxxxx 000 Xxxxx Xxx Xxxx XX 07/01/2012 $18,400,000
Avenue
MSMCH 26 Ledgemere Industrial 240-290 Eliot Ashland MA 12/08/2017 $14,400,000
Street
MSMCH 00 Xxxxx Xxxx Xxxxxxxx 0000-0000 Xxxxxxx XX 10/08/2017 $10,333,311
Center Lithia
Pinecrest Road
MSMCH 29 Harbor Walk Xxxxxx 0000-0000 XX Xx. Xxxxxxxxxx XX 09/08/2017 $9,625,000
Building 00xx Xxxxxx
MSMCH 00 Xxxxxxx Xxxx Xxxxxxx 0000, 0000, Xxxxxxxxxxx XX 09/08/2017 $9,400,000
2831, 2841,
0000 Xxxx
000xx Xxxxxx
MSMCH 37 Meadowbrook 41600 Ten Mile Novi MI 12/01/2016 $9,144,943
Shopping Center Road
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
ORIGINAL
MORTGAGE ORIGINAL TERM REMAINING TERM AMORT. MORTGAGE
LOAN SELLER NOTE DATE TO MATURITY TO MATURITY TERM(10) RATE ARD LOAN
---------------------------------------------------------------------------------------------------
MSMCH 10/03/2000 120 35 360 8.500% No
MSMCH 12/05/2006 129 118 IO 5.770% No
MSMCH 11/30/2007 120 120 IO 6.000% No
MSMCH 09/25/2006 132 118 IO 6.425% No
MSMCH 11/20/2007 120 120 360 5.930% Yes
MSMCH 09/26/2007 120 118 360 6.010% No
MSMCH 11/21/2006 132 120 360 6.020% No
MSMCH 12/27/2006 132 121 IO 5.690% No
MSMCH 06/29/2007 60 55 IO 6.430% No
MSMCH 11/16/2007 120 120 360 6.350% No
MSMCH 10/04/2007 120 118 360 6.550% No
MSMCH 08/30/2007 120 117 360 6.340% No
MSMCH 08/27/2007 120 117 360 6.270% No
MSMCH 11/07/2006 120 108 360 6.030% No
---------------------------------------------------------------------------------------------------
2-1
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN SELLER LOAN NO. PROPERTY NAME STREET ADDRESS CITY STATE DATE OF MATURITY BALANCE
------------------------------------------------------------------------------------------------------------------------------------
MSMCH 39 Shops at Clinton 32060, 32080, Wildomar CA 01/08/2018 $8,400,000
Xxxxx 00000 Xxxxxxx
Xxxxx Xxxx
MSMCH 43 Forum Office Park 10120, 10124, Glen Allen VA 08/08/2017 $7,350,000
&10128 West
Broad Street
MSMCH 44 Lone Mountain West 3350 Novat Las Vegas NV 02/01/2017 $6,790,000
Village Street
MSMCH 45 Hampton Inn - 0 Xxxxxx Xxxx Xxxxxx Xxxx XX 10/08/2017 $6,689,840
Hilton Head Island,
SC
MSMCH 46 Rochester Portfolio 0000 Xxxxxx Xxxxxxxxx XX 12/08/2017 $2,950,000
- Petco (Monroe Avenue
Avenue) (I)
MSMCH 46 Rochester Portfolio 000 Xxxxx Xxxxxxxxx XX 12/08/2017 $1,075,000
- Rite Aid (Lyell Avenue
Avenue) (I)
MSMCH 46 Rochester Portfolio 1000 & 0000 X. Xxxxxxxxx XX 12/08/2017 $1,000,000
- Rite Aid/Advance Clinton Avenue
Auto (North Clinton
Avenue) (I)
MSMCH 46 Rochester Portfolio 535 Portland Rochester NY 12/08/2017 $875,000
- Rite Aid Avenue
(Portland Avenue)
(I)
MSMCH 00 Xxxxx Xxxxxx - 0000 Xxxxxxxxx OH 06/01/2010 $5,879,465
Cobblestone Square Cobblestone Village
Road
MSMCH 00 Xxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx MD 10/08/2017 $5,850,000
Crownsville
Road
MSMCH 49 LA Fitness - 0000 Xxxxxxxx Xxxxxxxx XX 11/08/2017 $5,791,948
Pearland East Parkway
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
ORIGINAL
MORTGAGE ORIGINAL TERM REMAINING TERM AMORT. MORTGAGE
LOAN SELLER NOTE DATE TO MATURITY TO MATURITY TERM(10) RATE ARD LOAN
---------------------------------------------------------------------------------------------------
MSMCH 12/10/2007 120 120 360 6.760% No
MSMCH 07/27/2007 120 116 360 6.290% No
MSMCH 01/19/2007 120 110 360 5.530% No
MSMCH 09/18/2007 120 118 360 6.810% No
MSMCH 11/21/2007 120 120 300 6.500% No
MSMCH 11/21/2007 120 120 300 6.500% No
MSMCH 11/21/2007 120 120 300 6.500% No
MSMCH 11/21/2007 120 120 300 6.500% No
MSMCH 05/02/2000 120 30 240 8.740% No
MSMCH 09/13/2007 120 118 360 6.420% No
MSMCH 10/29/2007 120 119 300 6.250% No
------------------------------------------------------------------------------------------------
2-2
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN SELLER LOAN NO. PROPERTY NAME STREET ADDRESS CITY STATE DATE OF MATURITY BALANCE
------------------------------------------------------------------------------------------------------------------------------------
MSMCH 51 Vinings Jubilee 2950 & 0000 Xxxxxxx XX 01/01/2017 $5,608,856
Paces Ferry
Road
MSMCH 52 CVS - Houston 0000 Xxxxxxxxxx Xxxxxxx XX 11/08/2017 $5,500,000
MSMCH 00 Xxxxxxxxxx Xxxx 0000-0000 Xxxxxxxxxx XX 09/08/2017 $5,450,000
Coppertop Loop Island
MSMCH 00 Xxxxxxxxxxx Xxxxxx 0000 X. Xxxxxxxxxxx XX 10/08/2017 $5,375,000
Shoppes Glenstone
Avenue
MSMCH 55 000 Xxxxx Xxxxxx 000 Xxxxx Xxx Xxxx XX 09/08/2017 $5,086,029
Xxxxxx
XXXXX 00 Xxxxxxxxx - Xxxxx 000 Xxxx 000xx Xxxxx Xxxxxxx XX 10/08/2017 $4,900,000
Holland Street
MSMCH 00 Xxxxxxxxxx Xxxxxxx 0000 Xxxxxx XX 09/08/2017 $4,089,195
Shopping Center Interstate
Highway 35 East
MSMCH 61 Hayden Retail 00000 X. Xxxxxxxxxx XX 07/01/2017 $3,800,000
Condominium Hayden Road,
Xxxxx 000 & 000
XXXXX 00 Xxxxxxxxx Xxxxxxx 0000 Xxxx Xxxx Xxxxxxxxx XX 12/08/2017 $3,600,000
Phase I St. (US 192)
MSMCH 65 Walgreens - 000 Xxxx Xxx Xxxxxxxxx XX 12/08/2017 $3,575,000
Lexington, KY Circle Road
MSMCH 00 Xxxxxx Xxxxx Xxxxx 0000-0000 Xxxxx XX 09/08/2017 $3,570,000
Xxxxxx Avenue
MSMCH 70 Foxpointe Apartments 0000 Xxxxxxx Xxxx Xxxxxx XX 12/01/2013 $3,050,836
Street
MSMCH 71 CVS - Brockton SW Corner Of Brockton MA 12/08/2017 $3,025,000
Centre Street
And Xxxxx
Street
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
ORIGINAL
MORTGAGE ORIGINAL TERM REMAINING TERM AMORT. MORTGAGE
LOAN SELLER NOTE DATE TO MATURITY TO MATURITY TERM(10) RATE ARD LOAN
---------------------------------------------------------------------------------------------------
MSMCH 12/20/1996 240 109 240 8.430% No
MSMCH 10/18/2007 120 119 360 6.250% No
MSMCH 08/31/2007 120 117 360 6.250% No
MSMCH 09/13/2007 120 118 360 6.380% No
MSMCH 08/28/2007 120 117 360 6.160% No
MSMCH 09/10/2007 120 118 360 6.150% No
MSMCH 08/03/2007 120 117 360 6.340% No
MSMCH 06/29/2007 120 115 360 6.320% No
MSMCH 11/16/2007 120 120 360 6.470% No
MSMCH 12/06/2007 120 120 360 6.640% No
MSMCH 08/24/2007 120 117 360 6.160% No
MSMCH 11/10/1998 180 72 180 6.560% No
MSMCH 11/20/2007 120 120 360 6.250% No
---------------------------------------------------------------------------------------------------
2-3
------------------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN SELLER LOAN NO. PROPERTY NAME STREET ADDRESS CITY STATE DATE OF MATURITY BALANCE
------------------------------------------------------------------------------------------------------------------------------------
MSMCH 72 CVS - Lansingburgh 000 0xx Xxxxxx Xxxx XX 11/08/2017 $3,000,000
MSMCH 00 Xxxxx Xxxxx Xxxxxxxx 0000 00xx Xxxxxxxxxx XX 10/08/2017 $2,700,000
Street NE
MSMCH 76 Wawa Ground Lease 0000 Xxxxxx Xxxxxxxxx XX 10/08/2017 $2,500,000
Avenue
MSMCH 77 Shoppes at Xxxxxx 000 Xxxxxx Xxxx XX 09/08/2017 $2,425,000
Valley Drive
MSMCH 00 Xxxxxxx Xxxxxxx 00-00 Xxxx Xxxxxxxxx XX 12/08/2017 $1,760,000
Shopping Center Hill Road
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
ORIGINAL
MORTGAGE ORIGINAL TERM REMAINING TERM AMORT. MORTGAGE
LOAN SELLER NOTE DATE TO MATURITY TO MATURITY TERM(10) RATE ARD LOAN
---------------------------------------------------------------------------------------------------
MSMCH 11/06/2007 120 119 360 6.440% No
MSMCH 09/10/2007 120 118 360 5.920% No
MSMCH 09/14/2007 120 118 360 6.340% No
MSMCH 08/24/2007 120 117 360 6.060% No
MSMCH 11/29/2007 120 120 300 6.250% No
---------------------------------------------------------------------------------------------------
2-4
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to Purchaser of the Mortgage Loans, Seller had good title to, and
was the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage;
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignment in favor of the Trustee shall be required but instead Seller has
agreed to take all actions as are necessary to cause the Trustee to be shown as
the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related
2-1
Mortgagor's personal property used in, and reasonably necessary to operate, the
related Mortgaged Property. In the case of a Mortgaged Property operated as a
hotel or an assisted living facility, the Mortgagor's personal property includes
all personal property that a prudent mortgage lender making a similar Mortgage
Loan would deem reasonably necessary to operate the related Mortgaged Property
as it is currently being operated. A UCC financing statement has been filed
and/or recorded in all places necessary to perfect a valid security interest in
such personal property, to the extent a security interest may be so created
therein, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of UCC
financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no such assignment in favor of the
Trustee shall be required but instead Seller has agreed to take all actions as
are necessary to cause the Trustee to be shown as the owner of the related
Mortgage on the record of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. Except with respect to Mortgage Loans
secured primarily by unimproved land: (i) with respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property is, to Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established) that
would materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing the
Mortgage Loans that were not the
2-2
subject of an engineering report within 18 months prior to the Cut-Off Date as
set forth on Schedule A to this Exhibit 2, each Mortgaged Property is in good
repair and condition and all building systems contained therein are in good
working order (or adequate reserves therefor have been established) and each
Mortgaged Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related Mortgage
Loan as of the date hereof. Seller has received no notice of the commencement of
any proceeding for the condemnation of all or any material portion of any
Mortgaged Property. To Seller's knowledge (based on surveys and/or title
insurance obtained in connection with the origination of the Mortgage Loans), as
of the date of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy or
a marked-up title insurance commitment (on which the required premium has been
paid) which evidences such title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To Seller's knowledge, the insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose that were to have been complied with on or before the Closing
Date have been complied with, or any such funds so escrowed have not been
released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
2-3
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to the
Cut-Off Date, an environmental site assessment prepared to ASTM standards,
or an update of a previous such report, was performed with respect to each
Mortgaged Property in connection with the origination or the sale of the
related Mortgage Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to, or on behalf of, Purchaser
or its designee, and Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any Mortgaged Property
that was not disclosed in such report. Each Mortgage requires the related
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations. Where such assessment disclosed the
existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to
the Mortgagor was identified as the responsible party for such condition
or circumstance or (ii) environmental insurance covering such condition
was obtained or must be maintained until the condition is remediated or
(iii) the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in light of
the circumstances and/or to establish an operations and maintenance plan.
Each Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule C (the "Policy Issuer")
and effective as of the date thereof (each a "Secured Creditor Policy") or
a pollution legal liability policy naming the Seller and its successors
and/or assigns as an additional insured (a "PLL Policy"; a Secured
Creditor Policy or a PLL Policy, an "Environmental Insurance Policy").
Except as set forth on Schedule A to this Exhibit 2, with respect to each
Schedule C Loan, (i) the Environmental Insurance Policy is in full force
and effect, (ii)(a) a property condition or engineering report was
prepared with respect to lead based paint ("LBP") and radon gas ("RG") at
each Mortgaged Property that is used as a multifamily dwelling, and with
respect to asbestos containing materials ("ACM") at each related Mortgaged
Property and (b) if such report disclosed the existence of a material and
adverse LBP, ACM or RG environmental condition or circumstance affecting
the related Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage Loan or
provide additional security, or establish with the lender a reserve from
loan proceeds, in an amount deemed to be sufficient by Seller for the
remediation of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iii) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge of
any material and adverse environmental condition or
2-4
circumstance affecting the Mortgaged Property (other than the existence of
LBP, ACM or RG) that was not disclosed to the Policy Issuer in one or more
of the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an engineering
or other report provided to the Policy Issuer and (iv) the premium of any
Environmental Insurance Policy has been paid through the maturity of the
policy's term and the term of such policy extends at least five years
beyond the maturity of the Mortgage Loan. Each Environmental Insurance
Policy covering a Mortgaged Property identified on Schedule C to this
Exhibit 2 that constitutes a PLL Policy (1) has a term that is
co-terminous with the Maturity Date (or, in the case of an ARD Loan, the
Anticipated Repayment Date) of the related Mortgage Loan, (2) provides for
a deductible in an amount reasonably acceptable to the Seller and (3) is
in an amount reasonably acceptable to the Seller.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment
prepared to ASTM standards within 18 months prior to the Cut-Off Date as
set forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property could
be altered, renovated, demolished or transferred or (b) the presence of
such Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the holders
of a security interest therein, to liability for the cost of eliminating
such Hazardous Material or the hazard created thereby at a cost materially
and adversely affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable federal,
state and local laws pertaining to Hazardous Materials or environmental
hazards, any noncompliance with such laws does not have a material adverse
effect on the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant thereon,
has received any notice of violation or potential violation of any such
law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local environmental
law, ordinance, rule, regulation or order, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the Hazardous
Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901 et seq.),
the Federal Water Pollution Control Act as amended (33 U.S.C. xx.xx. 1251
et seq.), the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other agreement
that evidences or secures such Mortgage Loan and was executed by or on behalf of
the related Mortgagor is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms,
2-5
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to twelve (12) months
of operations of the Mortgaged Property estimated as of the date of origination
by the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered unpaid until the date on which interest
or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding. As of the date of
origination, (i) with respect to Mortgage Loans with a principal balance greater
than $3,500,000, no tenant physically
2-6
occupying 25% or more (by square feet) of the net rentable area of the related
Mortgaged Property was, to Seller's knowledge, a debtor in any state or federal
bankruptcy or insolvency proceeding and (ii) with respect to Mortgage Loans with
a principal balance equal to or less than $3,500,000 no tenant physically
occupying 50% or more (by square feet) of the net rentable area of the related
Mortgaged Property was, to Seller's knowledge, a debtor in any state or federal
bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate
in real estate or, if the related Mortgage Loan is secured in whole or in part
by the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease"), by the related Mortgagor's interest in the Ground
Lease but not by the related fee interest in such Mortgaged Property (the "Fee
Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) does not prohibit
the current use of the Mortgaged Property and does not prohibit the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding on a
mortgagee unless the mortgagee has consented thereto, and Seller has
received no notice that an event of default has occurred thereunder, and,
to Seller's knowledge, there exists no condition that, but for the passage
of time or the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
2-7
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage
2-8
Loan (other than a recourse feature or other third party credit enhancement
within the meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage, and no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to
fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of
the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or provides for negative amortization
(except that the ARD Loan may provide for the accrual of interest at an
increased rate after the Anticipated Repayment Date) or
2-9
for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller in this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the originator of
the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property 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, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. Seller has no knowledge that any
of the Mortgaged Properties is encumbered by any lien junior to the lien of the
related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are
no actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that could reasonably be expected to adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that could
reasonably be expected to materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which the
premises were intended.
32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence that
it customarily performs in the origination of comparable mortgage loans, as of
the date of origination of each Mortgage Loan or as of the date of the sale of
the related Mortgage Loan by Seller hereunder, the
2-10
related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is operated
as an assisted living facility, to Seller's knowledge (a) the related Mortgagor
is in compliance in all material respects with all federal and state laws
applicable to the use and operation of the related Mortgaged Property and (b) if
the operator of the Mortgaged Property participates in Medicare or Medicaid
programs, the facility is in compliance in all material respects with the
requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation
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by the Mortgagor, misappropriation of rents, insurance proceeds or condemnation
awards and breaches of the environmental covenants in the Mortgage Loan
documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until
the date that is more than two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted customary prepayment premiums and yield maintenance charges for
commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 43 are being made solely for
the purpose of determining whether the Mortgaged Property, if acquired by the
Trust, would qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, and may not be relied upon or used for any other
purpose. Such representations shall not be construed as a guarantee to any
degree that defaults or losses will not occur.
2-12
SCHEDULE A
Exceptions to Representations and Warranties
REP. 2. Whole Loan; Ownership of Mortgage Loans,
REP. 5. Assignment of Leases and Rents,
REP. 24. Cross-collateralization, and
REP. 30. Junior Lien.
Mortgage Loan No. ___, 000 Xxxxx Xxxxxx, is secured by a Mortgage that also
secures a junior "B" loan other than one or more other Mortgage Loans. The
related "B" loan also has the right to become pari passu under certain
circumstances. The related loan is described in the Prospectus Supplement.
REP. 7. Property Condition.
With respect to Mortgage Loan No. ___, 000 Xxxxx Xxxxxx, the property condition
report notes that there are 7 open New York City Department of Building
violations, dated 2004 to 2007, concerning the building elevators. Only "minimal
information" on the violations was available.
With respect to Mortgage Loan No. ___, 00xx Xxxxxx Retail, the property
condition report notes that there are 17 open New York City Department of
Building and Environmental Control Board violations concerning the building
elevators. The report does not identify the specific nature of the violations.
With respect to Mortgage Loan No. ___, Wawa Ground Lease, there are no delivered
engineering reports or other documents describing the condition of the property,
as the collateral for the loan is land, only, and does not include improvements.
REP. 14. Insurance.
With respect to each of the following Mortgage Loans, if the net proceeds from
insurance do not exceed a certain net proceeds restoration threshold
availability amount, then the net proceeds will be disbursed directly to the
borrower, provided certain conditions are met, without an express requirement to
apply the net proceeds to restoration of the Mortgaged Property. Nevertheless,
the loan documents contain an independent covenant on the part of the borrower
to repair and restore the Mortgaged Property:
No. ___, Xxxxx Town Center;
No. ___, Crossroads Town Center;
No. ___, Two Buckhead Plaza;
No. ___, Hilton Garden Inn;
No. ___, Market Square Shopping Center;
No. ___, Rochester Portfolio; and
No. ___, Wawa Ground Lease.
With respect to Mortgage Loan No. ___, Land - Monroe, NJ II, if the net proceeds
from insurance do not exceed a certain net proceeds restoration threshold
availability amount, then the net proceeds will be disbursed directly to the
tenant under the related ground lease during the term of such ground lease, and
otherwise to the borrower, provided certain conditions are met, without an
express requirement to apply the net proceeds to restoration of the Mortgaged
Property. Nevertheless, the loan documents contain an independent covenant on
the part of the borrower to repair and restore the Mortgaged Property.
With respect to Mortgage Loan No. ___, Cobblestone Square, a business
interruption or rental loss insurance policy is required, but only in an amount
equal to six months of operations of the Mortgaged Property estimated as of the
date of origination by the originator of the Mortgage Loan consistent with its
normal commercial lending practices. In addition, the related Mortgage does not
authorize the holder of the Mortgage to maintain the required insurance at the
related Mortgagor's cost and expense and to seek reimbursement therefor from
such Mortgagor. Furthermore, the application of casualty insurance proceeds are
subject to the provisions of a lease to which the related Mortgagor is a party.
Certain of the Mortgage Loans do not require the insurance to name the lender as
an additional insured, although the insurance policies must provide that all
proceeds shall be payable to the lender.
REP. 17. Leasehold Estate.
With respect to Mortgage Loan No. ___, 00xx Xxxxxx Retail, the Mortgaged
Property consists of two ground leased parcels. With respect to the ground lease
between 42nd St. Development Project, Inc. (as landlord) and FC 42nd Street
Associates, L.P. (as tenant), the memoranda of the fourth and fifth amendments
may not have been recorded. With respect to the ground lease between The New
42nd St., Inc. (as landlord) and FC 42nd Street Associates, L.P. (as tenant),
memoranda of the third and fourth amendments may not have been recorded.
With respect to Mortgage Loan No. ___, Xxxxx Town Center, the Mortgaged Property
is largely fee, but also includes one ground leased parcel that does not contain
all of the protections contained in this representation. However, no value was
attributed to the ground leased parcel in the appraisal for the Mortgage Loan.
REP. 25. Release of Mortgaged Property.
With respect to Mortgage Loan No. ___, Crossroads Town Center, the borrower may
obtain the release of individual parcels through a partial defeasance, provided
that certain conditions are
met, including: (i) no event of default shall have occurred and be continuing,
(ii) the principal amount of the note to be defeased is equal to 120% of the
allocated amount for the release parcel, (iii) the DSCR with respect to the
remaining properties is no less than the greater of (A) 1.10:1.00, or (B) the
DSCR immediately prior to the partial release, and (iv) the LTV ratio with
respect to the remaining properties is no greater than the lesser of (A) 80% or
(B) the LTV ratio immediately prior to the partial release.
With respect to Mortgage Loan No. ___, Rochester Portfolio, the borrower may
obtain the release of individual parcels through a partial defeasance, provided
that certain conditions are met, including: (i) no event of default shall have
occurred and be continuing, (ii) the principal amount of the note to be defeased
is equal to 125% of the allocated amount for the release parcel, (iii) the DSCR
with respect to the remaining property is no less than the greater of (A) the
combined DSCR of the entirety of the property prior to the partial release or
(B) 1.25x, (iv) the LTV ratio after the partial release is no more than the
greater of (A) the LTV ratio prior to the partial release and (B) 62%, and (v)
following any securitization, the lender receives written confirmation from the
rating agencies that the partial release will not result in any withdrawal,
downgrade or qualification of the ratings of the securitization pool.
With respect to Mortgage Loan No. ___, Sportsmans Park, the borrower may obtain
the release of up to three of the six units of the Mortgaged Property through a
partial defeasance, provided that certain conditions are met, including: (i) the
parcel to be released is a separate tax parcel, (ii) the DSCR is not less than
the greater of 1.20x or the DSCR prior to the partial release, (iii) the
loan-to-value is not greater than the lesser of 80% or the LTV ratio prior to
the partial release, based on an updated appraisal, (iv) no event of default
exists, (v) the amount of the note to be defeased is equal to 120% of the
allocated amount for the property being released.
With respect to Mortgage Loan No. ___, Vinings Jubilee, the lender agreed to
release a 0.619-acre parcel from the lien of the mortgage upon proof that, among
other things, the parcel was properly subdivided and a separate tax lot from the
rest of the encumbered property. The partial release was done by loan
modification agreement in 2003.
With respect to Mortgage Loan No. ___, Hayden Retail, the collateral consists of
two retail condominium units. The borrower may obtain the release one of the
units, provided it repays the Mortgage Loan in the amount of 125% of the
allocated loan amount for that unit, and the remaining property has a minimum
DSCR of 1.40X and an LTV of at least 65%.
With respect to Mortgage Loan No. ___, Meadowbrook Shopping Center, the borrower
may obtain the release of a designated portion of the property without any
required prepayment or defeasance of the Mortgage Loan.
REP. 29. Local Law Compliance.
With respect to Mortgage Loan No. ___, 000 Xxxxx Xxxxxx, the property condition
report notes that there are 7 open New York City Department of Building
violations, dated 2004 to 2007, concerning the building elevators. Only "minimal
information" on the violations was available.
With respect to Mortgage Loan No. ___, 00xx Xxxxxx Retail, the draft property
condition report, dated November 30, 2007, notes that there are 17 open New York
City Department of Building
and Environmental Control Board violations concerning the building elevators.
The report does not identify the specific nature of the violations.
REP 36. Due on Sale (encumbrance).
Each of the following Mortgage Loans permits the parent(s) of the borrower to
obtain future mezzanine financing, provided certain conditions are met:
No. ___, Xxxxx Town Center;
No. ___, Crossroads Town Center;
No. ___, Hilton Garden Inn;
No. ___, 00 Xxxx 00xx Xxxxxx;
No. ___, Ledgemere Industrial; and
No. ___, Kissimmee Commons Phase I.
REP. 37. Single Purpose Entity.
Mortgage Loan No. ___, 00xx Xxxxxx Retail, is a loan in excess of $10,000,000
for which the Mortgagor is not required to be a Single Purpose Entity.
REP. 38. Non-Recourse Exceptions.
Each of the following Mortgage Loans is not recourse to a natural person, nor is
any natural person liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the borrower,
misappropriation of rents, insurance proceeds or condemnation awards, or
breaches of the environmental covenants in the Mortgage Loan documents:
No. ___, 00xx Xxxxxx Retail;
No. ___, Crossroads Town Center;
No. ___, Two Buckhead Plaza;
No. ___, Harbor Walk Office Building;
No. ___, Sundance Apartments; and
No. ___, Xxxxxx Plaza North.
REP. 42. Terrorism Insurance.
With respect to each of the following Mortgage Loans, the borrower is not
required to maintain terrorism insurance:
No. ___, 00xx Xxxxxx Retail;
No. ___, Sundance Apartments;
No. ___, Fox Pointe Apartments; and
No. ___, Stop & Shop - Greenfield.
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
None
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
None
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated December 20, 2007 (the "Mortgage Loan Purchase Agreement"),
between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loans identified on the Mortgage Loan Schedule including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (a) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount equal to [_____________].
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this ____ day of December, 2007.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL
HOLDINGS LLC
By: ___________________________________
Name:______________________________
Title:_____________________________
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:______________________________
Title:_____________________________
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
AND CENTERLINE SERVICING INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ13
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated December 20, 2007 (the "Mortgage Loan Purchase Agreement"), between
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC ("MSMCH") and Xxxxxx Xxxxxxx
Capital I Inc. ("Depositor"), MSMCH is selling certain multifamily and
commercial mortgage loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of December 1, 2007 (the "Pooling and Servicing Agreement"), between
the Depositor, Wachovia Bank, National Association, as Master Servicer,
Centerline Servicing Inc. ("CENTERLINE") as Special Servicer, and Xxxxx Fargo
Bank, National Association ("XXXXX FARGO") as Trustee, Custodian, Paying Agent,
Certificate Registrar and Authenticating Agent, the Trustee and the Special
Servicer are granted certain powers, responsibilities and authority in
connection with the completion and the filing and recording of assignments of
mortgage, deeds of trust or similar documents, Form UCC-2 and UCC-3 assignments
of financing statements, reassignments of assignments of leases, rents and
profits and other Mortgage Loan documents required to be filed or recorded in
appropriate public filing and recording offices;
WHEREAS, MSMCH has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, MSMCH does hereby make, constitute and appoint XXXXX
FARGO, acting solely in its capacity as Trustee under, and in accordance with
the terms of, the Pooling and Servicing Agreement, MSMCH's true and lawful agent
and attorney-in-fact with respect to each Mortgage Loan in MSMCH's name, place
and stead: (i) to complete (to the extent necessary) and to cause to be
submitted for filing or recording in the appropriate public filing or recording
offices, all assignments of mortgage, deeds of trust or similar documents,
assignments or reassignments of rents, leases and profits, in each case in favor
of the Trustee, as set forth in the definition of "Mortgage File" in Section 1.1
of the Pooling and Servicing Agreement, that have been received by the Trustee
or a Custodian on its behalf, and all Form UCC-2 or UCC-3 assignments of
financing statements and all other comparable instruments or documents with
respect to the Mortgage Loans which are customarily and reasonably necessary or
appropriate to assign agreements, documents and instruments pertaining to the
Mortgage Loans, in each case in favor of the Trustee as set forth in the
definition of "Mortgage File" in, and in accordance with Section 1.1 of, the
Pooling and Servicing Agreement, and to evidence, provide notice of and perfect
such assignments and conveyances in favor of the Trustee in the
5-1
public records of the appropriate filing and recording offices; and (ii) to file
or record in the appropriate public filing or recording offices, all other
Mortgage Loan documents to be recorded under the terms of the Pooling and
Servicing Agreement or any such Mortgage Loan documents which have not been
submitted for filing or recordation by MSMCH on or before the date hereof or
which have been so submitted but are subsequently lost or returned unrecorded or
unfiled as a result of actual or purported defects therein, in order to
evidence, provide notice of and perfect such documents in the public records of
the appropriate filing and recording offices. Notwithstanding the foregoing,
this Limited Power of Attorney shall grant to XXXXX FARGO and CENTERLINE only
such powers, responsibilities and authority as are set forth in Section 2.1 of
the Mortgage Loan Purchase Agreement.
MSMCH does also hereby make, constitute and appoint CENTERLINE, acting
solely in its capacity as Special Servicer under the Pooling and Servicing
Agreement, MSMCH's true and lawful agent and attorney-in-fact with respect to
the Mortgage Loans in MSMCH's name, place and stead solely to exercise and
perform all of the rights, authority and powers of XXXXX FARGO as set forth in
the preceding paragraph in the event of the failure or the incapacity of XXXXX
FARGO to do so for any reason. As between CENTERLINE and any third party, no
evidence of the failure or incapacity of XXXXX FARGO shall be required and such
third party may rely upon CENTERLINE's written statement that it is acting
pursuant to the terms of this Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as MSMCH's
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as MSMCH might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and MSMCH agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between MSMCH, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as MSMCH's attorney-in-fact may rely completely, unconditionally and
conclusively on the authority of the Trustee or the Special Servicer, as
applicable, and need not make any inquiry about whether the Trustee or the
Special Servicer is acting pursuant to the Pooling and Servicing Agreement. Any
purchaser, title insurance company or other third party may rely upon a written
statement by either the Trustee or the Special Servicer that any particular
Mortgage Loan or related mortgaged real property in question is subject to and
included under this Limited Power of Attorney and the Pooling and Servicing
Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on MSMCH and MSMCH's successors and assigns.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
(1) with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
(2) with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
(3) with respect to the Trustee, the appointment of a receiver or
conservator with respect to the business of the Trustee, or the
filing of a voluntary or involuntary petition in bankruptcy by or
against the Trustee;
(4) with respect to the Special Servicer, the appointment of a receiver
or conservator with respect to the business of the Special Servicer,
or the filing of a voluntary or involuntary petition in bankruptcy
by or against the Special Servicer;
(5) with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
(6) with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance
with its terms; and
(7) with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to
the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of MSMCH under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, MSMCH has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
December 20, 2007.
XXXXXX XXXXXXX MORTGAGE
CAPITAL HOLDINGS LLC
By: _____________________________
Name: _____________________________
Title:_____________________________
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ____ day of December, 2007, before me appeared ___________, to me
personally known, who, being by me duly sworn did say that he/she is the
_____________ of Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said ___________ acknowledged said
instrument to be the free act and deed of said corporation.
___________________________________
Name:______________________________
Notary Public in and for said
County and State
My Commission Expires:
__________________________________
