EXECUTION COPY
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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 February 13, 2008
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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................................................................ 26
13. GOVERNING LAW........................................................... 26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................ 26
15. MISCELLANEOUS........................................................... 26
16. ENTIRE AGREEMENT........................................................ 27
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 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.................................................. 13
Initial Purchasers......................................................... 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
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 February 13, 2008, 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 February 1, 2008 between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer (the "Master Servicer"), Centerline
Servicing Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee and custodian (the "Trustee") and Xxxxx Fargo
Bank, National Association, as 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 2008-TOP29 (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-2, Class A-3, Class A-AB, Class A-4, Class A-4FL and
Class A-M 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 February 13, 2008 (the "Underwriting Agreement"), and
the Class X, Class A-J1, 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 and Bear, Xxxxxxx &
Co. Inc. (the "Initial Purchasers") pursuant to a Certificate Purchase
Agreement, between Purchaser and the Initial Purchasers, dated February 13, 2008
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated February 1, 2008,
as supplemented by a Prospectus Supplement dated February 13, 2008 (together,
the "Prospectus Supplement") and the Initial Purchasers will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
February 13, 2008 (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 February 1, 2008.
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 $185,582,598. The sale of the
Mortgage Loans shall take place on February 29, 2008 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, applicable deal expenses and an
amount equal to one day's interest for each Interest Reserve Loan sold by the
Seller to Purchaser which additional amount shall be deposited into the Interest
Reserve Account on the Closing Date. 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
February 1, 2008, 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
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in connection with any additional powers of attorney or revisions thereto that
are requested by such parties for purposes of such recordation. The parties
hereto agree that no such power of attorney shall be used with respect to any
Mortgage Loan by or under authorization by any party hereto except to the extent
that the absence of a document described in the second preceding sentence with
respect to such Mortgage Loan remains unremedied as of the earlier of (i) the
date that is 180 days following the delivery of notice of such absence to
Seller, but in no event earlier than 18 months from the Closing Date, and (ii)
the date (if any) on which such Mortgage Loan becomes a Specially Serviced
Mortgage Loan. 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 LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2008-TOP29, 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
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thereon, or if any such original modification, consolidation or extension
agreement has been delivered to the appropriate recording office for recordation
and either has not yet been returned on or prior to the 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 "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2008-TOP29,"
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
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record, and if any such assignment of such Assignment of Leases has not been
returned from the applicable public recording office, a copy of such assignment
certified by Seller to be a true and complete copy of the original assignment
submitted for recording, and (ii) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2008-TOP29," 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
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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 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,
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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 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.
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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 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.
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;
B. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit,
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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.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
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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.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, each 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, each 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 available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the 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
11
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
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the
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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.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated February 13, 2008, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (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.
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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 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.
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Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5 Purchaser's execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of any law, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
15
condition of Purchaser that would materially and adversely affect the ability of
Purchaser to perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of 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 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
16
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 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
17
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
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.
18
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.
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
19
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 other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 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 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.
20
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 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.
21
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
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 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):
22
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 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.
23
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.
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
9. NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and
24
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 X. Friend (with a copy to
the attention of Xxxxxxx Xxxxxx at 1221 Avenue of the Americas, New York, New
York 10020) (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 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxx (with a copy to the attention of Xxxxxxx Xxxxx at 1221 Avenue of
the Americas, New York, New York 10020) (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.
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.
25
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/ Xxxxxx X. Friend
------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxx X. Friend
------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
o Mortgage Loan Seller
o Loan Number
o Property Name
o Street Address
o City
o State
o Date of Maturity
o Cut-off Date Balance
o Note Date
o Original Term to Maturity or ARD
o Remaining Term
o Original Amortization
o Rate
o ARD Loan (Yes/No)
1-1
MSCI 2008 TOP29 MORTGAGE LOAN SCHEDULE
AGGREGATE LOAN SCHEDULE
MORTGAGE
MORTGAGE LOAN DATE OF CUT-OFF
LOAN NO SELLER PROPERTY NAME STREET ADDRESS CITY STATE MATURITY DATE BALANCE
-------- -------- ---------------------- ------------------------ ---------- ----- ---------- ------------
22 MSMCH Stonebridge Apartments 2801 Stonebridge New Castle DE 09/08/2017 $17,919,843
Boulevard
24 XXXXX Xxxxxxxxx Center 00000 XX 000xx Xxxxx Xxxxxxxxx XX 10/08/2017 $17,000,000
Phase II
27 MSMCH Best Buy Center - 0000 Xxxx Xxxxxxx Xxxxxxxxx XX 09/08/2017 $14,200,000
Kissimmee, FL Parkway
00 XXXXX Xxxxx Xxxxx Xxxxx 00 Xxxxxxxxxx Xxxxxx Xxxxx XX 05/01/2017 $10,000,000
Ground Lease Haven
00 XXXXX Xx. Xxxxxxx 000 Xx. Xxxxxxx Xxxxx Xxx XX 09/08/2017 $ 6,925,000
Multifamily Portfolio Angeles
- 000 Xx. Xxxxxxx
00 XXXXX Xx. Xxxxxxx 000 Xx. Xxxxxxx Xxxxx Xxx XX 09/08/2017 $ 1,825,000
Multifamily Portfolio Angeles
- 000 Xx. Xxxxxxx
36 MSMCH 0 Xxxxxxx Xxxx 0 Xxxxxxx Xxxx Xxxxxx XX 10/01/2017 $ 7,434,331
37 MSMCH Cotton Lane Retail 17014, 17058, & 00000 X Xxxxxxxx XX 02/08/2018 $ 7,100,000
Center Xxxx Road
39 XXXXX XX Xxxxxx Building 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx XX 12/08/2017 $ 6,988,999
City
42 MSMCH Harbor Towne Center 32185 - 00000 Xxxxx Xxx Xxxxxx XX 09/08/2017 $ 6,540,000
Xxxxx 00
00 XXXXX Xxxxxxxx Shopping 000 Xxxxxxx Xxxx XX Xxxxx XX 10/08/2017 $ 6,500,000
Center
45 XXXXX Xxxxx - Texarkana 0000 Xxxxxx Xxxx Xxxxxxxxx XX 09/08/2017 $ 6,200,000
46 MSMCH Skyridge Medical 1175 & 0000 Xxxxx Xxxxx Xxxxxx XX 10/08/2017 $ 5,900,000
Xxxxxx Xxxxxx Xxxx
00 XXXXX Xxxxxxxxx Xxxxxxx Coop 000 Xxxx Xxxxxxxx Xxxx Xxxxx XX 10/08/2017 $ 5,784,811
48 MSMCH Hilo Shopping Center 0000 Xxxxxxx Xxxxxx Xxxx XX 02/08/2018 $ 5,750,000
53 MSMCH X.X. Xxx Vista Phase 0000 X Xxxxxxx Xxxxxxxxx Xxxxxxx XX 12/08/2017 $ 4,693,123
II
55 XXXXX Xxxxxx Square Land 27 - 00 Xxxxxx Xxxxxx Xxx Xxxx XX 10/08/2017 $ 4,500,000
Loan
56 MSMCH Coral Tree Business 0000-0000 Xxxx 000xx Xxxxxx XX 10/08/2017 $ 4,200,000
Xxxx Xxxxxx
00 XXXXX Xxxxxxxxx Plaza 000-000 Xxxxxxx Xxxx Xxxxxxxxx XX 09/08/2017 $ 4,000,000
Shopping Center
58 MSMCH Harbor Gateway Plaza 0000-0000 Xxxx 000xx Xxx XX 10/08/2017 $ 4,000,000
Street Angeles
60 MSMCH Anchor Health Center 0000 Xxxxxx Xxxxxxx Xxxxxx XX 12/08/2017 $ 3,693,995
Boulevard
61 MSMCH 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxx XX 09/08/2017 $ 3,300,000
City
ORIGINAL
TERM REMAINING ARD
MORTGAGE TO TERM TO ORIGINAL MORTGAGE LOAN
LOAN NO NOTE DATE MATURITY MATURITY AMORTIZATION RATE (YES/NO)
-------- ---------- -------- --------- ------------ -------- --------
22 08/15/2007 120 115 360 6.070% No
24 09/20/2007 120 116 360 6.400% No
27 08/24/2007 120 115 360 6.400% No
32 04/30/2007 120 111 360 5.670% No
34 08/31/2007 120 115 360 6.135% No
34 08/31/2007 120 115 360 6.135% No
36 09/05/2007 120 116 240 6.500% No
37 01/11/2007 120 120 IO 6.270% No
39 11/07/2007 120 118 360 6.210% No
42 08/29/2007 120 115 360 6.260% No
43 09/20/2007 120 116 360 6.040% No
45 08/27/2007 120 115 360 6.310% No
46 09/28/2007 120 116 360 6.360% No
47 09/26/2007 120 116 360 7.140% No
48 01/14/2008 120 120 360 6.350% No
53 12/07/2007 120 118 360 6.470% No
55 09/27/2007 120 116 IO 6.000% No
56 09/12/2007 120 116 360 6.340% No
57 08/17/2007 120 115 360 6.000% No
58 09/26/2007 120 116 IO 6.490% No
60 11/21/2007 120 118 360 6.090% No
61 08/24/2007 120 115 360 6.590% No
1-2
MORTGAGE
MORTGAGE LOAN DATE OF CUT-OFF
LOAN NO SELLER PROPERTY NAME STREET ADDRESS CITY STATE MATURITY DATE BALANCE
-------- -------- ---------------------- ------------------------ ---------- ----- ---------- ------------
63 MSMCH Bel Air Retail Center 000 Xxxxxxxxx Xxxx Xxx Xxx XX 01/01/2018 $ 3,292,291
00 XXXXX Xxxxxxxx Xxxxx Xxxxx 000 X. Xxxxxxxxx Xxxxxx Xxxxx XX 09/08/2017 $ 3,100,000
- Petco Center
69 MSMCH Port St. Lucie Retail 0000-0000 XX Xx Xxxxx Xxxx Xx XX 10/08/2017 $ 3,090,751
Center West Boulevard Lucie
70 MSMCH Los Gatos Finance 00000 Xxx Xxxxx Xxx Xxxxx XX 09/08/2017 $ 3,000,000
Center Boulevard
71 XXXXX Xxxxxxx Shopping 0000-0000 Xxxxxxx Xxxx Xxx XX 11/08/2017 $ 2,992,109
Center Antonio
72 MSMCH RBC Bank Branch 00000 Xxxxx Xxxxxx Xxxx Xxxxx XX 02/08/2018 $ 2,935,000
Creek
73 MSMCH Westpointe Plaza 1440-1450 Xxxx Xxxxxxx Frederick MD 10/08/2017 $ 2,586,685
Xxxxxx
00 XXXXX Xxxxx Retail Center 0000 X. Xxxx Xxxxxx Xxxxx XX 12/08/2017 $ 2,496,423
77 MSMCH 000 Xxxxxx Xxxx 000 Xxxxxx Xxxx Xxxxxxxxxx XX 10/08/2017 $ 2,200,000
79 MSMCH 0000-0000 Xxxx Xxxxx 0000-0000 Xxxx Xxxxx Xxxxxxx XX 11/08/2017 $ 1,850,000
80 MSMCH Wards Crossing Retail 0000-X Xxxxx Xxxx Xxxxxxxxx XX 11/08/2017 $ 1,596,262
Center
81 MSMCH Corsicana Shopping 0000-0000 Xxxx Xxxxxxx Xxxxxxxxx XX 10/08/2017 $ 1,241,110
Center Avenue
82 MSMCH 7100 Belgrave 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 09/08/2017 $ 746,864
Grove
ORIGINAL
TERM REMAINING ARD
MORTGAGE TO TERM TO ORIGINAL MORTGAGE LOAN
LOAN NO NOTE DATE MATURITY MATURITY AMORTIZATION RATE (YES/NO)
-------- ---------- -------- --------- ------------ -------- --------
63 11/08/2007 120 117 360 6.550% No
67 08/31/2007 120 115 360 6.370% No
69 10/05/2007 120 116 360 6.650% No
70 08/13/2007 120 115 IO 6.320% No
71 10/25/2007 120 117 360 6.060% No
72 01/14/2008 120 120 360 6.750% No
73 09/10/2007 120 116 300 6.200% No
74 11/09/2007 120 118 360 6.550% No
77 09/28/2007 120 116 IO 6.030% No
79 10/11/2007 120 117 IO 6.030% No
80 11/08/2007 120 117 360 6.550% No
81 09/19/2007 120 116 360 6.470% No
82 08/10/2007 120 115 360 6.340% No
1-3
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, 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
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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
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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.
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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
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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. Sections 9601 et seq.), the Hazardous Materials
Transportation Act as amended (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. Sections 1251 et
seq.), the Clean Air Act (42 U.S.C. Sections 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
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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. Section 1.1001-3 and (b) would not cause such Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
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
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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 any of paragraphs 3, 7, 8, 12, 14, 15, 16 and 17 of 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
2-10
Mortgage Loan or as of the date of the sale of the related Mortgage Loan by
Seller hereunder, the 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
2-11
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
TOP29 - Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
Schedule A: Representation Exceptions
REP. 7. Property Condition.
With respect to Mortgage Loan Xx. 00, Xxxxxx Xxxxxx Land Loan, there is no
engineering report because the collateral includes only a land parcel, and not
the improvements located on the parcel.
REP. 14. Insurance.
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 as set forth in the respective loan
agreement.
With respect to the following Mortgage Loans, there is no requirement that the
property insurance policies name mortgagee as a loss payee, but there is a
requirement that all proceeds of the property insurance policies be payable to
the mortgagee.
Xx. 00, Xxxxxxxxxxx Xxxxxxxxxx;
No. ___, Vineyard Apartments; and
Xx. 00, Xxxxxx Xxxxxx Land Loan.
With respect to certain of the Mortgage Loans, if the net proceeds from
insurance do not exceed a certain net proceeds availability threshold 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. 06-26046, Best Buy Center;
No. 07-34164 & 07-35038, St. Xxxxxxx Multifamily Portfolio;
No. 07-3347, Stonebridge Apartments;
No. 07-31526, Vineyard Apartments; and
Xx. 00-00000, Xxxxxx Xxxxxx Land Loan.
REP. 25. Release of Mortgaged Property.
Mortgage Loan No. 07-34163, St. Xxxxxxx Multifamily Portfolio, permits the
borrower to obtain a release for certain parts of the income-producing portions
of the property, provided certain conditions are met, including, but not limited
to: (i) the debt service coverage ratio immediately prior to such release shall
be no less than the greater of (a) 1.10:1 or (b) the debt service coverage ratio
immediately prior to such release; (ii) the loan to value ratio immediately
following the release shall not be greater than the lesser of (a) 80% or (b) the
loan to value ratio immediately
prior to such release; (iii) delivery of an appraisal of the remaining property;
(iv) the principal balance of the Note to be defeased shall be equal to 115% of
the allocated loan amount for such parcel and (v) delivery of an officer's
certificate.
REP 36. Due on Sale (encumbrance).
With respect to Mortgage Loan No. 37, JC Penney Building, the borrower's members
may obtain future mezzanine financing, provided certain conditions are met,
including, but not limited to (i) the property having a combined loan to value
ratio on the aggregate debt of no greater than 75%; (ii) the property must have
a combined minimum debt service coverage ratio for the aggregate debt of at
least 1.25:1.00; (iii) the loan documents and intercreditor agreement provided
to lender must be acceptable to a prudent commercial mortgage lender; (iv)
lender receives rating agency confirmation that the mezzanine loan will not
result in a re-qualification, reduction, or withdrawal of any rating in effect
immediately prior to the mezzanine loan; (v) borrower must reimburse lender for
all costs and expenses incurred in processing the mezzanine loan and (vi) no
event of default shall have occurred.
Each of the following Mortgage Loans also permits one or more of the owners of
direct or indirect ownership interests of the borrower to obtain future
mezzanine financing, provided certain conditions are met:
No. 42, Harbor Towne Center;
Xx. 00, X.X. Xxx Xxxxx Xxxxx XX;
Xx. 00, Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx;
Xx. 00, Xxxxxx Xxxxxxx Xxxxx; xxx
Xx. 00, Xxx Xxxxx Finance Center.
With respect to Loan Xx. 00, 000 Xxxx Xxxxxxxx (Xxxxxxxxx Xxxxxxx Xxxx), the
borrower has taken an unsecured line of credit in a maximum amount not to exceed
the greater of $2,000,000 or an aggregate loan-to-value ratio of <25%.
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:
Xx. 00, XX Xxxxxx Xxxxxxxx;
Xx. 00, Xxxxxxxxx Xxxxxxx Xxxx;
Xx. 00, 000 Xxxxxx Xxxx;
No. 79, 0000-0000 Xxxx Xxxxx; and
No. 82, 0000 Xxxxxxxx Xxxxxx.
With respect to Mortgage Loan No. 34, St. Xxxxxxx Multifamily Portfolio, the
borrower and/or guarantor are liable to the holder of the Mortgage Loan for
damages arising in the case of misappropriation of rents only when following an
event of default.
With respect to Mortgage Loan No. 27, Best Buy Center, the borrower and/or
guarantor are liable to the holder of the Mortgage Loan for damages arising in
the case of misappropriation of rents only when collected in advance.
With respect to Mortgage Loan No. 24, Xxxxxxxxx Center, the borrower and/or
guarantor are liable to the holder of the Mortgage Loan for damages arising in
the case of misappropriation of rents only when collected in advance or
following an event of default.
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 February 13, 2008 (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.
3-1
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this 13th day of February, 2008.
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 LASALLE BANK NATIONAL ASSOCIATION
AND CENTERLINE SERVICING INC.
WITH RESPECT TO
XXXXXX XXXXXXX CAPITAL I INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2008-TOP29
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated February 13, 2008 (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 February 1, 2008 (the "Pooling and Servicing Agreement"), between the
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer,
Centerline Servicing Inc. ("CENTERLINE") as Special Servicer, LaSalle Bank
National Association ("LaSalle") as Trustee and Custodian and Xxxxx Fargo Bank,
National Association, as 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 LaSalle,
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
4-1
perfect such assignments and conveyances in favor of the Trustee in the public
records of the appropriate filing and recording offices; and (ii) to file or
record in the appropriate public filing 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 LaSalle 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 LaSalle as set forth in the
preceding paragraph in the event of the failure or the incapacity of LaSalle to
do so for any reason. As between CENTERLINE and any third party, no evidence of
the failure or incapacity of LaSalle 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
February 13, 2008.
XXXXXX XXXXXXX MORTGAGE
CAPITAL HOLDINGS LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 13th day of February, 2008, 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:
______________________________
