EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of July 31, 2007
(this "Agreement"), is entered into between General Electric Capital Corporation
(the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of August 1, 2007 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc. and Xxxxx Fargo Bank, National Association ("Xxxxx Fargo") as
master servicers (each, in such capacity, a "Master Servicer"), Centerline
Servicing Inc. as special servicer (the "Special Servicer"), U.S. Bank National
Association as trustee (the "Trustee"), Xxxxx Fargo as certificate administrator
and LaSalle Bank National Association as custodian (in such capacities, the
"Certificate Administrator" and "Custodian", respectively). Capitalized terms
used but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of July 31, 2007 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") for itself and as representative
of Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx"; Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx,
collectively, in such capacity, the "Underwriters"), whereby the Purchaser will
sell to the Underwriters all of the Certificates that are to be registered under
the Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of July 31, 2007 (the "Certificate Purchase Agreement"),
with Xxxxxxx Xxxxx (in such capacity, the "Initial Purchaser"), whereby the
Purchaser will sell to the Initial Purchaser all of the remaining Certificates
(such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $886,893,130 (the "GECC Mortgage Loan
Balance") (subject to a variance of plus or minus
5.0%) 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 such payments are
received. The GECC Mortgage Loan Balance, together with the aggregate principal
balance of the Other Mortgage Loans as of the Cut-off Date (after giving effect
to any payments due on or before such date, whether or not such payments are
received), is expected to equal an aggregate principal balance of $4,050,224,261
(subject to a variance of plus or minus 5%). The purchase and sale of the
Mortgage Loans shall take place on August 16, 2007 or such other date as shall
be mutually acceptable to the parties to this Agreement (the "Closing Date").
The consideration (the "Purchase Consideration") for the Mortgage Loans shall be
equal to (i) approximately 96.8677% of the GECC Mortgage Loan Balance as of the
Cut-off Date, plus (ii) $ 2,182,198.50, which amount represents the amount of
interest accrued on the GECC Mortgage Loan Balance, as agreed to by the Seller
and the Purchaser. The Purchase Consideration may be subsequently adjusted
pursuant to the Letter Agreement referred to below.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration (without regard to any adjustment thereto
pursuant to the Letter Agreement) and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Pooling and Servicing Agreement, the sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement (as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
The Seller hereby covenants and agrees that the sale of the Mortgage
Loans by the Seller is not subject to, and shall not be limited by, the letter
agreement (the "Letter Agreement") entered into by the Seller and Xxxxxxx Xxxxx
with respect to certain classes of the Certificates, and that the Seller shall
have no claim against the Mortgage Loans as a result of its entering into the
Letter Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and
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interest on the Mortgage Loans due on or before the Cut-off Date and principal
prepayments thereon), shall belong to, and be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Custodian (i) on or
before the Closing Date, the documents and instruments specified below with
respect to each Mortgage Loan that are Specially Designated Mortgage Loan
Documents and (ii) on or before the date that is 30 days after the Closing Date,
the remaining documents and instruments specified below that are not Specially
Designated Mortgage Loan Documents with respect to each Mortgage Loan (the
documents and instruments specified below and referred to in clauses (i) and
(ii) preceding, collectively, a "Mortgage File"). All Mortgage Files so
delivered will be held by the Custodian in escrow for the benefit of the Seller
at all times prior to the Closing Date. The Mortgage File with respect to each
Mortgage Loan that is a Serviced Trust Mortgage Loan shall contain the following
documents:
(i) (A) the original executed Mortgage Note for the
subject Mortgage Loan, including any power of attorney related to the
execution thereof (or a lost note affidavit and indemnity with a copy of
such Mortgage Note attached thereto), together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of U.S. Bank National Association, as Trustee for
the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2007-C1, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1, or in blank, and (B)
in the case of a Loan Combination, a copy of the executed Mortgage Note
for each related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iii) an original or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments thereof,
in each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form
(except for completion of the assignee's name and address (if the
assignment is delivered in blank) and any missing recording information or
a certified copy of that assignment as sent for recording), of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded document relating
to the subject Mortgage Loan otherwise included in the Mortgage File, in
favor of U.S. Bank National Association, as Trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust 2007-C1, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 (or, in the case of a Loan
Combination, in favor of U.S. Bank National Association, as Trustee for
the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2007-C1, Commercial
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Mortgage Pass-Through Certificates, Series 2007-C1, and in its capacity as
lead lender on behalf of the holder(s) of the related Non-Trust Loan(s)),
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned pursuant
to clause (iv) above) in favor of U.S. Bank National Association, as
Trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Trust
2007-C1, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
(or, in the case of a Loan Combination, in favor of U.S. Bank National
Association, as Trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2007-C1, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, and in its capacity as lead lender on behalf of the
holder(s) of the related Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any
prior UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement assignment,
in form suitable for filing in favor of U.S. Bank National Association, as
Trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Trust
2007-C1, Commercial Mortgage Pass-Through Certificates, Series 2007-C1, as
assignee (or, in the case of a Loan Combination, in favor of U.S. Bank
National Association, as Trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2007-C1, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1, and in its capacity as lead lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank;
(ix) an original or a copy of any Ground Lease, guaranty
or ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any
escrow or reserve agreement, any security agreement, any management
agreement, any agreed upon
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procedures letter, any lockbox or cash management agreements, any
environmental reports or any letter of credit (which letter of credit
shall not be delivered in original form to the Custodian, but rather to
the applicable Master Servicer), in each case relating to the subject
Mortgage Loan;
(xii) with respect to a Mortgage Loan secured by a
hospitality property, a signed copy of any franchise agreement and/or
franchisor comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan
Combination, an original or a copy of the related Loan Combination
Co-Lender Agreement; and
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to
permit the Custodian to fulfill its obligations pursuant to Section 2.01(d) of
the Pooling and Servicing Agreement with respect to the Mortgage Loans,
including paying the fees (as agreed to between the Seller and Custodian)
charged by the Custodian in connection with the performance by the Custodian of
the recording, filing and delivery obligations it has undertaken pursuant to
Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate
to the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the applicable Master Servicer (or, at the direction of such Master Servicer, to
the appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due diligence analyses, credit committee briefs or
memoranda or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Custodian, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Custodian or any
other person because the delivery of the mortgage loan checklist is being
provided to the Custodian solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
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(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
the Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Seller is a party or by which the Seller is
bound, which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement
or instrument or subject to any certificate of incorporation, bylaws or
any other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
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(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with
this Agreement or the consummation of the transactions contemplated by
this Agreement except as have previously been obtained, and no bulk sale
law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the
Seller, the transfer of the Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Seller,
results or will result in the creation or imposition of any lien on any of
the Seller's assets or property that would have a material adverse effect
upon the Seller's ability to perform its duties and obligations under this
Agreement or materially impair the ability of the Purchaser to realize on
the Mortgage Loans.
(viii) There is no action, suit, proceeding or
investigation pending or to the knowledge of the Seller, threatened
against the Seller in any court or by or before any other governmental
agency or instrumentality which would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the validity of this Agreement or the
performance by the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will report the
transfer of the Mortgage Loans to the Purchaser as a sale of the Mortgage
Loans to the Purchaser in exchange for consideration consisting of a cash
amount equal to the Purchase Consideration. The consideration received by
the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller.
(x) The Prospectus Supplement contains all the information
that is required to be provided in respect of the Seller (that arise from
its role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB. For purpose of this Agreement, "Regulation AB"
shall mean Subpart 229.1100 - Asset-Backed Securities (Regulation AB), 17
C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7,
2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
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(c) If the Seller receives written notice of a Document Defect or
a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein, cure
such Document Defect or Breach, as the case may be, in all material respects,
which shall include payment of losses and any Additional Trust Fund Expenses
associated therewith or, if such Document Defect or Breach (other than omissions
due solely to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan (which, for the purposes of this clause (i), shall include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement) not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for
purposes of this clause (ii), shall include an REO Loan) not later than the end
of such 90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit into its
Collection Account any Substitution Shortfall Amount in connection therewith;
provided, however, that, unless the Document Defect or Breach would cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach
is capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Certificate Administrator setting forth the reason(s) such
Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to the Specially
Designated Mortgage Loan Documents) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject
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Crossed Loan Group for purposes of this paragraph and the Seller shall be
required to repurchase or substitute all such Crossed Loans unless (1) the
weighted average debt service coverage ratio for all the remaining Crossed Loans
for the four calendar quarters immediately preceding such repurchase or
substitution is not less than the weighted average debt service coverage ratio
for all such Crossed Loans, including the affected Crossed Loan, for the four
calendar quarters immediately preceding such repurchase or substitution, and (2)
the weighted average loan to-value ratio for the remaining Crossed Loans,
determined at the time of repurchase or substitution, based upon an appraisal
obtained by the Special Servicer at the expense of the Seller shall not be
greater than the weighted average loan-to-value ratio for all such Crossed
Loans, including the affected Crossed Loan determined at the time of repurchase
or substitution, based upon an appraisal obtained by the Special Servicer at the
expense of the Seller; provided, that if such debt service coverage and
loan-to-value criteria are satisfied, any other Crossed Loan (that is not the
Crossed Loan directly affected by the subject Document Defect or Breach), shall
be released from its cross-collateralization and cross-default provision so long
as such Crossed Loan (that is not the Crossed Loan directly affected by the
subject Document Defect or Breach) is held in the Trust Fund; and provided,
further, that the repurchase or replacement of less than all such Crossed Loans
and the release of any Crossed Loan from a cross-collateralization and
cross-default provision shall be further subject to the delivery by the Seller
to the Certificate Administrator, at the expense of the Seller, of an Opinion of
Counsel to the effect that such release would not cause either of REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions. In the event that one or more of such
other Crossed Loans satisfy the aforementioned criteria, the Seller may elect
either to repurchase or substitute for only the affected Crossed Loan as to
which the related Document Defect or Breach exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Loan Group. All
documentation relating to the termination of the cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at the expense
of the Seller and, where required, with the consent of the related Mortgagor.
For a period of two years from the Closing Date, so long as there remains any
Mortgage File relating to a Mortgage Loan as to which there is any uncured
Document Defect or Breach known to the Seller that existed as of the Closing
Date, the Seller shall provide, once every 90 days, the officer's certificate to
the Certificate Administrator described above as to the reason(s) such Document
Defect or Breach remains uncured and as to the actions being taken to pursue
cure; provided, however, that, without limiting the effect of the foregoing
provisions of this Section 3(c), if such Document Defect or Breach shall
materially and adversely affect the value of such Mortgage Loan or the interests
of the holders of the Certificates therein (subject to the second and third
provisos in the sole sentence of the preceding paragraph), the Seller shall in
all cases on or prior to the second anniversary of the Closing Date either cause
such Document Defect or Breach to be cured or repurchase or substitute for the
affected Mortgage Loan (for the avoidance of doubt, the foregoing two-year
period shall not be deemed to be a time limitation on the Seller's right to cure
a Document Defect or Breach as set forth in this Section 3). The delivery of a
commitment to issue a policy of lender's title insurance as described in
representation 8 set forth on Schedule I hereto in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Custodian not later than the 180th day following
the Closing Date.
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To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not materially impair the ability
of the other party to exercise its remedies against the Primary Collateral
securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies or some other mutually agreed
upon accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents, or, if the related
Mortgage Loan documents do not so provide, then on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan is modified to terminate the related cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Certificate
Administrator an Opinion of Counsel that such modification shall not cause an
Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Custodian or the Trust Fund in connection with
such release, (ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set forth in the Mortgage Loan documents and the Seller
provides an opinion of counsel to the effect that such release would not cause
either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
10
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any fees or expenses
that are the subject of a cure by the Seller are subsequently obtained from the
related Mortgagor, the cure payment made by the Seller shall be returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the Seller,
acting in its sole discretion, may effect a repurchase or substitution (in
accordance with the provisions of this Section 3(c) setting forth the manner in
which a Mortgage Loan may be repurchased or substituted) of a Mortgage Loan, as
to which representation 30 set forth on Schedule I has been breached, in lieu of
paying the costs and expenses that were the subject of the breach of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall Amount(s), as applicable, in the applicable Master Servicer's
Collection Account, and, if applicable, the delivery of the Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Custodian and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other
11
Mortgage Loans. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf the
Certificate Administrator may act) on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this Agreement
will not (A) violate the Purchaser's articles of incorporation or bylaws, (B)
violate any law or regulation or any administrative decree or order to which it
is subject or (C) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to
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the execution of this Agreement or the performance by the Purchaser of its
obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), 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 by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP on
the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian
and the applicable Master Servicer, respectively, all documents represented to
have been or required to be delivered to the Custodian and such Master Servicer
pursuant to Section 2 of this Agreement;
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(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the 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;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of
Deloitte & Touche LLP, in form satisfactory to the Purchaser and relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus (as defined in Section 6(d) of this Agreement) and Prospectus
Supplement (as defined in Section 6(d) of this Agreement), respectively, shall
have been delivered; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of July 31, 2007,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., LaSalle Bank National
Association, Xxxxx Fargo Bank, National Association, the Purchaser, the
Underwriters and the Initial Purchaser.
Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the agreement(s) pursuant to which the servicing rights with
respect to the Mortgage Loans are being sold to the applicable Master Servicer
(such agreement(s), individually or collectively, as the case may be, the
"Servicing Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchaser may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or
14
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;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchaser may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Free Writing Prospectus and nothing has come to his/her attention
that leads him/her to believe that the Specified Portions of the Free Writing
Prospectus (when read together with the free writing prospectus distributed by
e-mail to potential investors in the Certificates on July 27, 2007, as
supplemented by the free writing prospectus distributed by e-mail to potential
investors in the certificates on July 31, 2007, and attached hereto as Exhibit
A), as of the Time of Sale or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omit to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, (ii) such officer has carefully examined
the Specified Portions (as defined below) of the Prospectus Supplement and
nothing has come to his/her attention that leads him/her to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that leads him/her to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall
consist of Annex A-1 to the Free Writing Prospectus, entitled "Certain
Characteristics of the Mortgage Loans" (insofar as the information contained in
Annex A-1 relates to the Mortgage Loans sold by the Seller hereunder), Annex A-1
(YM Footnotes) to the Prospectus Supplement, entitled "Yield Maintenance
Formulas"(insofar as the information contained in Annex A-1(YM Footnotes)
relates to the Mortgage Loans sold by the Seller hereunder), Annex A-2 to the
Free Writing Prospectus, entitled "Certain Statistical Information Regarding the
Mortgage Loans" (insofar as the information contained in Annex A-2 relates to
the Mortgage Loans sold by the Seller hereunder), Annex B to the Free Writing
Prospectus entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Free Writing Prospectus, entitled
"Preliminary Structural and Collateral Term Sheet" (insofar as the information
contained in Annex C relates to the Mortgage Loans sold by the Seller
hereunder), the CD-ROM which accompanies the Free Writing Prospectus (insofar as
such CD-ROM is consistent with Annex X-0, Xxxxx X-0 and/or Annex B (only insofar
as the information contained therein relates to the Mortgage Loans sold by the
Seller hereunder)), and the following sections of the Free Writing Prospectus
(only to the extent that any such information relates to the Seller (solely in
its
15
capacity as a seller, sponsor or originator of the Mortgage Loans sold by the
Seller hereunder) or the Mortgage Loans sold by the Seller hereunder and
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement
and exclusive of aggregated numerical information that includes the Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool", "Transaction
Participants--The Sponsors" and "Affiliations and Certain Relationships and
Related Transactions".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 to the Prospectus Supplement, entitled "Certain Characteristics of
the Mortgage Loans" (insofar as the information contained in Annex A-1 relates
to the Mortgage Loans sold by the Seller hereunder), Annex A-1 (YM Footnotes) to
the Prospectus Supplement, entitled "Yield Maintenance Formulas"(insofar as the
information contained in Annex A-1(YM Footnotes) relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Description of the
Ten Largest Mortgage Loans" (insofar as the information contained in Annex C
relates to the Mortgage Loans sold by the Seller hereunder), the CD-ROM which
accompanies the Prospectus Supplement (insofar as such CD-ROM is consistent with
Annex X-0, Xxxxx X-0 and/or Annex B (only insofar as the information contained
therein related to the Mortgage Loans sold by the Seller hereunder)), and the
following sections of the Prospectus Supplement (only to the extent that any
such information relates to the Seller (solely in its capacity as a seller,
sponsor or originator of the Mortgage Loans sold by the Seller hereunder) or the
Mortgage Loans sold by the Seller hereunder and exclusive of any statements in
such sections that purport to describe the servicing and administration
provisions of the Pooling and Servicing Agreement and exclusive of aggregated
numerical information that includes the Other Mortgage Loans): "Summary of
Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan Sellers",
"Summary of Prospectus Supplement--The Mortgage Loans and the Mortgaged Real
Properties", "Risk Factors--Risks Related to the Mortgage Loans", "Description
of the Mortgage Pool", "Transaction Participants--The Sponsors" and
"Affiliations and Certain Relationships and Related Transactions".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated July
16, 2007, and relating to the Publicly Offered Certificates.
16
"Memorandum" means the confidential Private Placement Memorandum
dated July 31, 2007, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 10, 2007.
"Prospectus Supplement" means the prospectus supplement dated July
31, 2007, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means July 31, 2007, at 3:30 p.m.
(e) Each of: (i) a certificate of a duly authorized officer of
Seller confirming that all necessary internal approvals authorizing the Seller's
entering into the transactions contemplated by this Agreement has been obtained,
(ii) the certificate of incorporation and bylaws of the Seller, and (iii) an
original or a copy of a certificate of good standing of the Seller issued by the
State of Delaware not earlier than 30 days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Certificate Administrator, the
Custodian, the Underwriters, the Initial Purchaser and each of the Rating
Agencies, together with such other written opinions, including as to insolvency
matters, as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Treatment as Sale. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by the Seller to the
Purchaser as provided in Section 2 of this Agreement be, and be construed as, a
sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge of
the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Purchaser any disclosure information relating to
any event, specifically relating to the Seller (that arise from its role as
sponsor with respect to the Mortgage Loans), reasonably determined in good faith
by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form 10-K
by the Trust Fund (in formatting reasonably appropriate for inclusion in such
form) insofar as such disclosure is required under Item 1117 or 1119 of
Regulation AB or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts
to deliver proposed disclosure language relating to any event, specifically
relating to the Seller (that arise from its role as
17
sponsor with respect to the Mortgage Loans), described under Item 1117 or 1119
of Regulation AB or Item 1.03 to Form 8-K to the Purchaser as soon as reasonably
practicable after the Seller becomes aware of such event and in no event more
than two (2) business days following the occurrence of such event if such event
is reportable under Item 1.03 to Form 8-K. The obligation of the Seller to
provide the above referenced disclosure materials in any fiscal year of the
Trust Fund will terminate upon the Trustee or Certificate Administrator filing a
Form 15 with respect to the Trust Fund as to that fiscal year in accordance with
Section 8.16 of the Pooling and Servicing Agreement or the reporting
requirements with respect to the Trust Fund under the Securities Exchange Act of
1934, as amended (the "1934 Act"), have otherwise automatically suspended. The
Seller hereby acknowledges that the information to be provided by it pursuant to
this Section 9 will be used in the preparation of reports on Form 8-K, Form 10-D
or Form 10-K with respect to the Trust Fund as required under the 1934 Act and
any applicable rules promulgated thereunder and as required under Regulation AB.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
either by certified mail (return receipt requested) or by courier service (proof
of delivery requested) to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto, or as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which 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 particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE
18
INTERNAL LAWS AND DECISIONS 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. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchaser (also as an intended third party beneficiary hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchaser and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be enforced. The Seller's obligations hereunder
shall in no way be expanded, changed or otherwise affected by any amendment of
or modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
19
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Deloitte & Touche LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to deliver the letters
required by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxx
--------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Signatory
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
GECC MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
General Electric Capital Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Managing Director
with a copy to:
General Electric Capital Corporation
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention Xxxxx Xxxxxxxxxx
and with a copy to:
Xxxxxxxx X. XxXxxx, Esq.
GE Commercial Finance
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Purchaser:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
and to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
250 Xxxxx Street
GECC MORTGAGE LOAN PURCHASE AGREEMENT
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer
of the Mortgage Loans to the Purchaser, the Seller had good title to, and was
the sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and servicing rights purchase agreements pertaining
thereto); provided that recording and/or filing of various transfer documents
are to be completed after the Closing Date as contemplated hereby and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to the Purchaser
or its designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is, or shall be as of the Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal and/or
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in August 2007, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent since the date
of origination of any Mortgage Loan, without giving effect to any applicable
grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in any event
subject, however, to the following (collectively, the "Permitted Encumbrances"):
(a) the lien for current real estate taxes, ground rents, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties; (b)
covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record and/or are referred to in the related lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy, or a "marked-up" commitment binding upon the title insurer or escrow
instructions binding on the title insurer and irrevocably obligating the title
insurer to issue such title insurance policy); (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy, a "marked-up" commitment
binding upon the title insurer or escrow instructions binding on the title
insurer and irrevocably obligating the title insurer to issue such title
insurance policy); (d) other matters to which like properties are commonly
subject; (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property; (f) if such Mortgage
Loan constitutes a Crossed Loan, the lien of the Mortgage for another Mortgage
Loan contained in the same Crossed Loan Group; (g) if the related Mortgaged
Property consists of one or more units in a condominium, the related condominium
declaration; and (h) the rights of the holder of any Non-Trust Loan that is part
of a related Loan Combination to which any such Mortgage Loan belongs. The
Permitted Encumbrances do not, individually or in the aggregate, materially and
adversely interfere with the security intended to be provided by the related
Mortgage, the current principal use of the related Mortgaged Property, the Value
of the Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan. The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet available to the
Seller) and constitutes a legal, valid, binding and, subject to the limitations
and exceptions set forth in representation 13 below, enforceable assignment of
such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any Non-Trust Loan that is part of a related Loan Combination to which any
such Mortgage Loan belongs, and except that a license may have been granted to
the related Mortgagor to exercise certain rights and perform certain obligations
of the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; 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, executed and delivered in favor of the Trustee is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession of the related
Mortgaged Property to collect the rents or provides for rents to be paid
directly to the related mortgagee, if there is an event of default beyond
applicable notice and grace periods. Except for the holder of the related
Non-Trust Loan with respect to any Mortgage Loan that is part of a Loan
Combination, no person other than the related Mortgagor and, in certain
instances the related Mortgagee, owns any interest in any payments due under the
related leases on which the Mortgagor is the landlord, covered by the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any manner, that, in each
case, would materially and adversely interfere with the security intended to be
provided by such Mortgage, (b) neither the related Mortgaged Property nor any
material portion thereof has been released from the lien of such Mortgage and
(c) the related Mortgagor has not been released from its obligations under such
Mortgage, in whole or in material part. With respect to each Mortgage Loan,
since the later of (a) July 6, 2007 and (b) the closing date of such Mortgage
Loan, the Seller has not executed any written instrument that (i) impaired,
satisfied, canceled, subordinated or rescinded such Mortgage Loan, (ii) waived,
modified or altered any material term of such Mortgage Loan, (iii) released the
Mortgaged Property or any material portion thereof from the lien of the related
Mortgage, or (iv) released the related Mortgagor from its obligations under such
Mortgage Loan in whole or material part. For avoidance of doubt, the preceding
sentence does not relate to any release of escrows by the Seller or a servicer
on its behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its Value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge based upon surveys and/or
the title insurance policy referred to in representation 8 below, as of the date
hereof, (a) none of the material improvements on the related Mortgaged Property,
which were included for the purpose of determining the Value of the related
Mortgaged Property, encroach upon the boundaries and, to the extent in effect at
the time of construction, do not encroach upon the building restriction lines of
such property, and none of the material improvements on the related Mortgaged
Property encroached over any easements, except, in each case, for encroachments
that are insured against by the lender's title insurance policy referred to in
representation 8 below or that do not
materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer or escrow instructions binding on the title insurer irrevocably
obligating the title insurer to issue the title insurance policy) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances, except that in
the case of a Mortgage Loan as to which the related Mortgaged Property is made
up of more than one parcel of property and is not secured by a single Mortgage,
each related Mortgage (and therefore the related Title Policy) may be in an
amount less than the original principal amount of the Mortgage Loan, but is not
less than the allocated amount of subject parcel constituting a portion of the
related Mortgaged Property. Such 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, 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) inures to the benefit of the Trustee as
sole insured (except with respect to the rights of the holder of any Non-Trust
Loan that is part of a related Loan Combination to which any such Mortgage Loan
belongs) without the consent of or notice to the insurer. Such Title Policy
contains no material exclusion for whether, or it affirmatively insures (unless
the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable provisions 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, including, without limitation, judicial or non-judicial foreclosure or
similar proceedings (as
applicable for the jurisdiction where the related Mortgaged Property is
located). None of the Mortgage Loan documents contains any provision that
expressly excuses the related Mortgagor from obtaining and maintaining insurance
coverage for acts of terrorism provided that such insurance is generally
available at commercially reasonable rates.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are or will become payable to such trustee by the Seller,
the 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 such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not
greater than 2% of the outstanding principal balance of the related Mortgage
Loan, (F) there exists an escrow of funds reasonably estimated to be sufficient
for purposes of effecting such remediation, (G) the related Mortgaged Property
is insured under a policy of insurance, subject to certain per occurrence and
aggregate limits and a deductible, against certain losses arising from such
circumstances and conditions, (H) a responsible party provided a guaranty or
indemnity to the related Mortgagor to cover the costs of any required
investigation, testing, monitoring or remediation and, as of the date of
origination of the related Mortgage Loan, such responsible party had financial
resources reasonably estimated to be adequate to cure the subject violation in
all material respects or (I) the related Mortgagor or one of its affiliates is
currently taking, or is required to take, such actions (which may be
implementation of an operations and maintenance plan), if any, with respect to
such conditions or circumstances as have been recommended by the Environmental
Report or required by the applicable governmental authority. To the Seller's
actual knowledge and without inquiry beyond the related Environmental Report,
there are no significant or material circumstances or conditions with respect to
such Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Mortgagor questionnaire delivered to the Seller in
connection with the issue of any related environmental insurance policy, if
applicable, that would require investigation or remediation by the related
Mortgagor under, or otherwise be a material violation of, any applicable
environmental law. The Mortgage Loan documents for each Mortgage Loan require
the related Mortgagor to comply in all material respects with all applicable
federal, state and local environmental laws and regulations. Each of the
Mortgage Loans identified on Annex C hereto is covered by a secured creditor
environmental insurance policy and each such policy is noncancellable during its
term, is in the amount at least equal to 125% of the lesser of (a) the amount
estimated in such Environmental Report as sufficient to pay the costs of such
remediation or (b) the principal balance of the Mortgage Loan, has a term ending
no sooner than a date which is the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials. The related
Mortgagor (or affiliate thereof) has agreed to indemnify, defend and hold the
Seller and its successors and assigns harmless from and against any and all
losses, liabilities, damages, injuries, penalties, fines, out-of-pocket expenses
and claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement evidencing or securing such Mortgage Loan that was executed by or on
behalf of the related Mortgagor with respect to each Mortgage Loan 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 one form of action law or market value limit deficiency
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying applicable
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i), (ii), and (iii)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
material portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management Agency
as a special flood hazard area (Zone A or Zone V), and flood insurance was
available, a flood insurance policy is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of: (1) the minimum amount required, under the terms of coverage, to compensate
for any damage or loss on a replacement basis, (2) the outstanding principal
balance of such Mortgage Loan, and (3) the maximum amount of insurance available
under the applicable federal flood insurance program. Each Mortgaged Property
(other than a manufactured housing community) located in California or in
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than twenty percent
(20%) of the replacement value of the related improvements, calculated using
methodology acceptable to a reasonably prudent commercial mortgage lender with
respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least 10 days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Additionally, for any Mortgage
Loan having a Cut-off Date Balance equal to or greater than $20,000,000, the
insurer for all of the required coverages set forth herein has a claims paying
ability or financial strength rating from S&P or Xxxxx'x of not less than
A-minus (or the equivalent), or from A.M. Best Company of not less than
"A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than "A-"
from Fitch (or the equivalent). With respect to each Mortgage Loan, except as
set forth in the first sentence of this representation 14, the related Mortgage
Loan documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the related mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan documents for each Mortgage Loan
provide that proceeds paid under any such casualty insurance policy will (or, at
the lender's option, will) be applied either to the repair or restoration of all
or part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining after
the repair or restoration of the related Mortgaged Property or payment of
amounts due under the Mortgage Loan; and provided, further, that, if the related
Mortgagor holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes
or assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is,
to the Seller's knowledge, a debtor in any state or federal bankruptcy,
insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property or
any such material non-compliance is insured by the Title Policy or a law and
ordinance insurance policy). In the case of each legal non-conforming use or
structure, the related Mortgaged Property may be restored or repaired to the
full extent of the use or structure at the time of such casualty or law and
ordinance coverage has been obtained in an amount that would be required by
prudent commercial mortgage lenders (or, if the related Mortgaged Property may
not be restored or repaired to the full extent of the use or structure at the
time of such casualty and law and ordinance coverage has not been obtained in an
amount that would be required by prudent commercial mortgage lenders, such fact
does not materially and adversely affect the Value of the related Mortgaged
Property) or a zoning endorsement to the related Title Policy has been obtained
or the Mortgaged Property is covered by insurance that will provide proceeds
that will be sufficient to repay the Mortgage Loan.
18. Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since the
recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File; and if required
by such Ground Lease, the lessor thereunder has received notice of the
lien of the related Mortgage in accordance with the provisions of such
Ground Lease;
(ii) the related lessee's leasehold interest in the
portion of the related Mortgaged Property covered by such Ground Lease is
not subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related Fee Interest and
Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the Mortgagor's interest in such
Ground Lease is assignable to, and is thereafter further assignable by,
the Purchaser upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has either been obtained
or
(pursuant to the Ground Lease) may not be unreasonably withheld); provided
that such Ground Lease has not been terminated and all amounts owed
thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and,
to the Seller's knowledge, no material default has occurred under such
Ground Lease;
(v) such Ground Lease requires the lessor thereunder to
give notice of any material default by the lessee to the mortgagee under
such Mortgage Loan provided that such mortgagee has provided the lessor
with notice of its lien in accordance with the provisions of the Ground
Lease; and such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to
such mortgagee in the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan 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 either (i) has an original term
which extends not less than twenty (20) years beyond the Stated Maturity
Date of such Mortgage Loan, or (ii) has an original term, which together
with extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into
a new lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed or consented to by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or
(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial
mortgage lender in the lending area where the related Mortgaged Property
is located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be
amended, modified, cancelled or terminated without the prior written
consent of the mortgagee under such Mortgage Loan, or (ii) any such action
without such consent is not binding on such mortgagee, its successors or
assigns; provided, however, that termination or cancellation without such
consent may be binding on the mortgagee if (i) an event of default occurs
under the Ground Lease, (ii) notice is provided to the mortgagee and (iii)
such default is curable by the mortgagee as provided in the Ground Lease,
but remains uncured beyond the applicable cure period.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
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 (other than (a) amounts paid by the tenant as specifically provided
under a related lease or by the property manager or (b) application and
commitment fees, escrow funds, points and reimbursements for fees and expenses
incurred in connection with the origination and funding of the Mortgage Loan),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b)
subject to available funds, a portion of the cash flow generated by such
Mortgaged Property will be applied each month to pay down the principal balance
thereof in addition to the principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that could reasonably be
expected to materially and adversely affect the Value of the Mortgaged Property
as security for such Mortgage Loan or the current ability of the Mortgagor to
pay principal, interest or any other amounts due under such Mortgage Loan.
23. Other Mortgage Liens. Except with respect to another Mortgage
Loan (which will also be an asset of the Trust Fund) cross-collateralized with a
Mortgage Loan, none of the Mortgage Loans permits the related Mortgaged Property
to be encumbered by any mortgage lien 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. To the Seller's knowledge, except as indicated in the
preceding sentence and except for cases involving other Mortgage Loans, none of
the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. The related Mortgage Loan documents require the Mortgagor under each
Mortgage Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including any applicable Rating Agency fees, or would
permit the related mortgagee to withhold such consent if such costs and expenses
are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal 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 that are not bonded or escrowed for or covered by title
insurance, and (ii) 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
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Other than any default interest or any late
charges, each Mortgage Loan (other than ARD Loans after their respective
Anticipated Repayment Dates) complied with, or was exempt from, all applicable
usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental
authorities, (ii) a legal opinion, (iii) an endorsement to the related Title
Policy, (iv) a representation of the related Mortgagor at the time of
origination of such Mortgage Loan, (v) a zoning report from a zoning consultant,
or (vi) other due diligence that a commercially reasonable originator of similar
mortgage loans in the jurisdiction where the related Mortgaged Property is
located customarily performs in the origination of comparable mortgage loans,
the related Mortgagor, the related lessee, franchisee or operator was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated or such material licenses, permits and franchises have
otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any Crossed Loan Groups, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Loan Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more improved or
unimproved parcels of land to which, in either case, the Seller did not give any
material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is
responsible for the payment of all reasonable costs and expenses associated with
defeasance incurred by the related mortgagee, including Rating Agency fees. If
any Mortgage Loan permits assumptions, then the related Mortgage Loan documents
provide that the related Mortgagor is responsible for all reasonable costs and
expenses associated with an assumption incurred by the related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate, late charge or prepayment premium.
32. Inspection. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) or an affiliate thereof
inspected, or caused the inspection of, the related Mortgaged Property within
the preceding twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan documents, transfers that are subject to the mortgagee's approval of the
proposed transferee and satisfaction of certain conditions specified in the
Mortgage Loan documents, transfers, substitutions or releases of collateral
provided in the Mortgage Loan documents, transfers among existing members,
partners or shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgage Loans or multi-property Mortgage
Loans, transfers among co-Mortgagors, transfers of worn-out or obsolete
furniture, furnishings and equipment or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan documents; provided,
however, that certain Mortgage Loans provide for the assumption of the Mortgage
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 Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, 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 during the term of the Mortgage Loan it may
only own and operate 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 generally
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any material 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 with respect to 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), that it will not guarantee or assume the debts of any other person,
that it will not commingle assets with affiliates, and that it will not transact
business with affiliates (except to the extent required by any cash management
provisions of the related Mortgage Loan documents) except on an arm's-length
basis.
36. Whole Loan. Each Mortgage Loan is a whole loan (which term
includes any Mortgage Loan that is part of a Loan Combination, but does not
include any related Non-Trust Loan) and not a participation interest in a
mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage except for certain personal property and fixtures
subject to purchase money security interests and personal property leases
permitted under the Mortgage Loan documents. If any Mortgaged Property securing
a Mortgage Loan is operated as a hospitality property, then (a) the security
agreements, financing statements or other instruments, if any, related to the
Mortgage Loan secured by such Mortgaged Property establish and create a valid
security interest in all items of personal property owned by the related
Mortgagor which are material to the conduct in the ordinary course of the
Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more UCC financing statements covering such personal property
have been filed and/or recorded (or have been sent for filing or recording or
submitted to a title company for filing or recording pursuant to escrow
instructions) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing or recording of a UCC financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Seller) executed and delivered in favor of the Trustee
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in representation 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee. Notwithstanding any of 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 or recording of UCC Financing Statements are required in order
to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan
provides for interest only payments prior to its Stated Maturity Date or, in the
case of an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan
begins to amortize prior to its Stated Maturity Date or, in the case of an ARD
Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation awards. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than 15 days from the applicable Due Date or five (5)
days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in such policy)
identified in any environmental reports related to such Mortgaged Property
which are in the Seller's possession or are otherwise known to the Seller;
or
(ii) has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports in the
Seller's possession related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used by the
Seller (with respect to each Mortgage Loan serviced thereby, if the Seller acted
as a servicer of any such Mortgage Loan) and, to the best of the Seller's
knowledge, the servicing and collection practices employed by any servicer(s)
acting as agents for the Seller with respect to each Mortgage Loan, have, in all
material respects, met customary standards utilized by prudent commercial
mortgage loan servicers with respect to whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
GE CAPITAL LOANS
GE POOL 35/MLMT 2007-C1
[References are to corresponding mortgage loan representations set forth in
Exhibit E to Mortgage Loan Purchase and Sale Agreement. Underlined titles are
provided to facilitate reference only]
1. Mortgage Loan Schedule.
2. Ownership of Mortgage Loans.
o Kingsley Square (760067902) ($14,630,000): Sub-servicing rights
retained by third party (Xxxxxxxx Xxxxxxxx Xxxxxx)
o Toledo Hilton (760069342) ($9,300,000): Sub-servicing rights
retained by third party (CBRE)
o Cimarron Apts (760064442) ($6,200,000): Sub-servicing rights
retained by third party (Xxxxxxxx Xxxxxxxx Xxxxxx)
o Xxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxx #0 (760071637) ($2,300,000):
Sub-servicing rights retained by third party (CBRE)
3. Payment Record.
4. Lien; Valid Assignment.
o Plaza Royale (760071192) ($11,000,000): Tenant (Stonewood) has right
of first refusal (ROFR) affecting entirety of property or any
portion thereof; ROFR is not extinguished by foreclosure;
Foreclosure or deed-in-lieu does not trigger ROFR, however
o Lakeshore Landings MHC (760071172) ($10,000,000): Florida statute
confers right of first refusal to owner's association; ROFR does not
apply to foreclosure or deed-in-lieu, however
o 2100 Xxxxxx (760071951)($8,000,000): Tenant (Xxxxxx Xxxxxxx Capital
International) has right of first refusal (ROFR) affecting entirety
of property; ROFR is not extinguished by foreclosure; Foreclosure or
deed-in-lieu does not trigger ROFR, however
x Xxxxxxxx-Pecan Portfolio (760071269) ($7,500,000): One of two
constituent properties, Pecan Ridge, is encumbered by 1992 Land Use
Restriction Agreement
(XXXX) which imposes use and leasing restrictions; 23 units at Pecan
Ridge property (representing approximately 12% of the combined
number of units for the constituent properties) are subject to the
XXXX; Current rent used for underwriting purposes is less then the
XXXX-permitted rent; Current compliance with related restrictions
confirmed at closing, and additional carve-out obtained from warm
body joinder parties regarding non-compliance- related losses
o Hawthorn Suites Naples (00-0000000) ($7,200,000): Franchisor
(Hawthorne Suites Franching, Inc) has Right of First Refusal) (ROFR)
if Borrower transfers property to third party that does not elect to
continue franchise; ROFR is not extinguished by foreclosure; Change
in franchise is ostensibly the triggering event for ROFR
o Walgreens - McKinney, TX (760070102) ($5,672,000): Tenant
(Walgreens) has right of first refusal (ROFR) affecting entirety of
property; ROFR is not extinguished by foreclosure; Foreclosure or
deed-in-lieu does not trigger ROFR, however
o Lake Blue MHC (760068763) ($2,480,000): Florida statute confers
right of first refusal (ROFR) to owner's association; ROFR is not
extinguished by foreclosure; ROFR does not apply to foreclosure or
deed-in-lieu, however
o Walgreens - Jasper, IN (760072551) ($2,303,000): Tenant (Walgreens)
has right of first refusal (ROFR) affecting entirety of property;
ROFR is not extinguished by foreclosure; Foreclosure or deed-in-lieu
does not trigger ROFR, however
5. Assignment of Leases and Rents.
6. Mortgage Status; Waivers and Modifications
For all split loans originated by GE Capital: related intercreditor
documentation was finalized post-closing and submitted to
Centerline.
o B2 Portfolio (760071701) ($130,500,000): Post closing modification
reflecting the sale of 50% of existing mezzanine debt from Xxxxx
Fargo Bank to Marathon Structured Finance Fund, L.P.; Xxxxx Fargo
Bank remains the administration agent for the mezzanine debt
o The Greens at McKinney (760026431)($18,743,000): Loan documents
amended post- closing to extend the defeasance lock-out period to a
date more than two years past REMIC start-up date; Related loan
REMIC terminated
o Kingsley Square (760067902) ($14,630,000): Loan documents amended
post-closing to (i) conform SPE covenants to approved contingent
unsecured subordinate debt (up to $500,000 unsecured debt permitted
to purchase fee estate when environmental conditions remedied by fee
owner), and (ii) include additional criterion for partial defeasance
of outparcel (currently occupied by
CVS Pharmacy), namely that pre- and post-release DSCR be at least
1.22x (DSCR underwitten at loan origination)
7. Condition of Property; Condemnation.
8. Title Insurance.
9. No Holdbacks.
10. Mortgage Provisions.
11. Trustee under Deed of Trust.
12. Environmental Conditions.
o Kingsley Square (760067902) ($14,630,000): Environmental
contamination arising from prior dry cleaning operations at site; $5
million PLL-type policy issued by Indian Harbor, which is an S & P
"A+" rated insurance carrier; Policy expires 06.14.2014 (loan
matures 07.01.2012); Curative work has progressed to point that MSD
application submission to City of Dallas is imminent (upon approval
of MSD application, TCEQ review follows and, if successful, closure)
o The Seasons on 0xx Xxxxxx (760057577) ($13,000,000): Phase I is
dated 08.01.2006, more than 12 months prior to targeted pool closing
of 08.07.2007
13. Loan Document Status.
14. Insurance.
o Columbia/Brook Park MHC Rollup (760061022) ($55,000,000): No
terrorism insurance required; Terrorism insurance currently in
place, however; also, non-recourse carve-out obtained for related
losses
o The Greens at McKinney (760026431)($18,743,000): No terrorism
insurance required; Terrorism insurance currently in place, however;
also, non-recourse carve-out obtained for related losses
o Plaza Royale (760071192) ($11,000,000): Insurance policy permitted
to have 80% co-insurance provision, subject either to (i) annual
confirmation that insurance is maintained at 100% of improvements'
insurable value, or (ii) agreed amount endorsement and inflation
guard coverage satisfactory to lender
o Lakeshore Landings MHC (760071172) ($10,000,000): No terrorism
insurance required; Non-recourse carve-out from joinder party
obtained for related losses, however
x Xxxxxxxx-Pecan Portfolio (760071269) ($7,500,000): No terrorism
insurance required; Non-recourse carve-out from warm body joinder
party obtained for related losses, however
o Walgreens - McKinney, TX (760070102) ($5,672,000): Borrower's
obligation to provide required insurance is suspended under certain
conditions, including (i) If tenant (Walgreens) elects to
self-insure for lease-required coverages and maintains an S & P
unsecured debt rating of "A" and net worth of $250 million, in which
event casualty, rent loss, comprehensive general liability and
terrorism insurance are suspended; (ii) if tenant provides third
party insurance for lease-required coverages (casualty and
comprehensive general liability), in which event rent loss and
terrorism insurance are suspended; also, (iii) Rent loss coverage
not required for so long as lease does not afford tenant rent
abatement remedy following casualty; and (iv) Loan documents do not
expressly require terrorism insurance; Non-recourse carve-out
obtained for related terrorism losses, however; Walgreens has
notified the landlord of its self-insurance election, so no third
party insurance is currently in place
o OST Self-Storage (760071194) ($4,881,000): No terrorism insurance
required; Non-recourse carve-out from warm body joinder party
obtained for related losses, however
o Walgreens - Chiefland (760071111) ($3,944,000): Borrower's
obligation to provide required casualty, rent loss, comprehensive
general liability and terrorism insurance suspended so long as
tenant satisfies lease's insurance requirements, or, in the event
tenant elects to self-insure, tenant`s (Walgreens) maintaining S & P
"A" senior unsecured debt rating or better
x Xxxxxxxx Center (760071113) ($3,040,000): Borrower's obligation to
provide required casualty, rent loss, comprehensive general
liability and terrorism insurance suspended so long as tenant
satisfies lease's insurance requirements, or, in the event tenant
elects to self-insure, tenant`s (Advance Stores Company,
Incorporated) ) maintaining S & P "A" senior unsecured debt rating
or better
o Walgreens - Jasper, IN (760072551) ($2,303,000): Borrower's
obligation to provide required casualty, rent loss, comprehensive
general liability and terrorism insurance suspended so long as
tenant satisfies lease's insurance requirements, or, in the event
tenant elects to self-insure, tenant`s (Walgreens) maintaining $100
million net worth and an S & P "A" senior unsecured debt rating or
better
15. Taxes and Assessments.
16. Mortgagor Bankruptcy.
17. Local Law Compliance.
o Arrow Xxxx MHC- Safety (760064626) ($6,099,000): CUP for mobile home
use expires 08.07.2010 (loan matures 05.01.2017); Loan docs include
affirmative covenant to pursue extension with default remedy in not
timely obtained
o Lindbergh Plaza (760072073) ($9,200,000): Tenant (Home Depot) has
been notified by applicable jurisdiction of zoning violation
regarding use of parking lot as outdoor sales area; Tenant is in
process of obtaining necessary permits to continue such outdoor
sales; Borrower has "best efforts"-type covenant to obtain necessary
permits or, if applicable, enforce the related lease provisions
respecting compliance with laws; Non-recourse carve-out obtained
from warm body joinder party regarding zoning violation-related
losses
18. Leasehold Estate.
o Kingsley Square (760067902) ($14,630,000): Leasehold; Fee Not
Subordinated; Entirety of mortgaged property is subject to ground
lease; Latest ground lease maturity date is 06.30.2103; Upon
completion of soil and groundwater remediation arising out of prior
dry cleaning operations at the property, Ground lessor has "put'
election that obligates Borrower to purchase fee for $500,000;
Joinder party has springing recourse liability for related amount
due, Variations: Prior to completion of remediation, first $500,000
of casualty or condemnation proceeds goes to ground lessor
o Toledo Hilton (760069342) ($9,300,000): Leasehold; Fee Not
Subordinated; Ground lease comprises entirety of mortgaged property;
Latest ground lease term expires 06.11.2066 (loan matures
(005.01.2017); Variations: Transfer or assignment of leasehold
estate by ground lessee (or leasehold mortgagee after foreclosure)
requires ground lessor's consent, not to be unreasonably withheld or
delayed
19. Qualified Mortgage.
20. Advancement of Funds.
21. No Equity Interest, Equity Participation or Contingent Interest.
22. Legal Proceedings.
o College Park Loans (Aggregate: $88,045,000): GMH - The Ridge
(760069491) ($23,120,000); GMH - Uptown (760069494) ($20,160,000);
GMH - University Heights (760069489) ($18,160,000); GMH - University
Walk (760069495) ($14,760,000); GMH - Campus Edge (760069490)
($11,845,000): GMH Communities, an indirect, controlling co-owner of
Borrower and joinder party, was included among defendants in a class
action complaint filed in April 2006 alleging securities law
violations arising out of the alleged issuance of misleading
information, including misstatement of earnings and financial
results, absence of adequate internal controls, and non-compliance
with generally accepted accounting principles. Related complaints
were filed later in April 2006, and
additional complaints may be filed until a class has been certified
by the Court. The defendants do not expect to file a dispositive
motion, such as a motion to dismiss the action, until a consolidated
complaint has been filed and a settlement conference has occurred.
In addition, on March 12, 2007, the sellers of a portfolio of
student housing properties acquired in June 2005, who received units
of limited partnership interests in GMH's operating partnership in
connection with the transaction, filed a lawsuit against GMH
alleging securities fraud. The sellers have alleged similar claims
to those asserted in the pending class action litigation described
above, including that GMH provided false and misleading financial
results in connection with the offer and sale of the partnership
interests. In connection with the acquisition of the portfolio, GMH
purchased four student housing properties in exchange for a
combination of cash, assumption of debt and the issuance of limited
partnership interests in its operating partnership valued at a total
of approximately $76.8 million. The units of limited partnership
interest were issued for a total value of approximately $27.5
million. The outcome of these litigation matters is uncertain, and
an adverse outcome could have a material adverse effect on GMH's
financial condition and results of operations
o Columbia/Brook Park MHC Rollup (760061022) ($55,000,000):
Approximately 940 individual tenants at the related mortgaged
property sought a declaratory judgment against the Borrower and its
affiliated property management company, among others, alleging that
rent increases adopted at the mortgaged property in 2001 were
unconscionable; Rents increased approximately 15% between 1999 and
2001, and have increased thereafter through 2006 at rates between 5%
and 7% annually. The 2001 increases were, according to Borrower, a
response to the costs of increased park services and amenities, as
well as financial liabilities; The trial court held, affirming
previous determinations of a state magistrate and lower court, that
the rent increases did not rise to the level of being unconscionable
under Ohio's substantive unconscionability factors; An appeal of
that decision to the Ohio Court of Appeals is currently pending;
Unearned portions of a $3,252,000 (cash-funded) performance escrow
that have not been released prior to 05.31.2010 (based on a minimum
1.20x DSCR and maximum 80% LTV) can only be released subsequent to
that date if acceptable evidence is provided showing either (i) that
Borrower has obtained a final, non-appealable judgment in its favor
on all counts, or (ii) Borrower has fully and finally satisfied any
judgment rendered in favor of plaintiffs and that no further
obligations exist with respect to the related litigation
23. Other Mortgage Liens.
o Toledo Hilton (760069342) ($9,300,000): $600,000 subordinated B Note
held by CBA Mezzanine Capital Finance, LLC (not included in MLMT
2007-C1 Trust); B Note and right of holder of B Note to receive
payments is junior and subordinated to A Note and rights of holder
of A Note; A Note and B Note are cross-defaulted
24. No Mechanics' Liens.
25. Compliance.
26. Licenses and Permits.
27. Cross-collateralization.
o Toledo Hilton (760069342) ($9,300,000): $600,000 subordinated B Note
held by CBA Mezzanine Capital Finance, LLC (not included in MLMT
2007-C1 Trust); B Note and right of holder of B Note to receive
payments is junior and subordinated to A Note and rights of holder
of A Note; A Note and B Note are cross -defaulted
28. Releases of Mortgage Property.
29. Defeasance.
30. Defeasance and Assumption Costs.
31. Fixed Rate Loan.
32. Inspection.
o The Seasons on 0xx Xxxxxx (760057577) ($13,000,000): Tape shows
07.28.2006 engineering report, which site inspection is more than 12
months prior to targeted pool closing date (08.07.2007)
33. No Material Default.
34. Due-on-Sale.
35. Single-Purpose Entity.
36. Whole Loan.
37. Tax Parcels.
38. ARD Loans.
39. Security Interests.
40. Prepayment Premiums and Yield Maintenance Charges.
41. Commencement of Amortization.
42. Servicing Rights.
Sub-serviced loans to be scheduled in Pooling and Servicing Agreement:
o Kingsley Square (760067902) ($14,630,000): Sub-servicing rights
retained by third party (Xxxxxxxx Xxxxxxxx Xxxxxx)
o Toledo Hilton (760069342) ($9,300,000): Sub-servicing rights
retained by third party (CBRE)
o Cimarron Apts (760064442) ($6,200,000): Sub-servicing rights
retained by third party (Xxxxxxxx Xxxxxxxx Xxxxxx)
o Xxxxxxxxxx Xxxxxxxxxx Xxxx - Xxxx #0 (760071637) ($2,300,000):
Sub-servicing rights retained by third party (CBRE)
43. Recourse.
44. Assignment of Collateral.
45. Fee Simple Interest.
o Ordnance Plaza 2 (760069887) ($22,400,000): Indemnity Deed of Trust
Structure (Maryland property); Guarantor (not Borrower) is owner of
mortgaged property
46. Escrows.
47. Operating Statements.
48. Grace Period.
49. Disclosure to Environmental Insurer.
50. No Fraud.
51. Servicing.
52. Appraisal.
53. Origination of the Mortgage Loans.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
NONE.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
--------------------------------------------------------------------------------
MORTGAGE LOAN NUMBER LOAN NAME
--------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxxx
--------------------------------------------------------------------------------
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
GECC
PROPERTY
LOAN # LOAN GROUP PROPERTY NAME LOAN / PROPERTY ORIGINATOR TYPE
--------------------------------------------------------------------------------------------------------------------------
10 2 B2 Portfolio Loan GECC Multifamily
10.01 2 Xxxxxxxx Property GECC Multifamily
10.02 2 Steeple Chase Property GECC Multifamily
10.03 2 Vacaro Property GECC Multifamily
10.04 2 Xxxxx Xxxxx Property GECC Multifamily
10.05 2 Somerset Property GECC Multifamily
10.06 2 Chelsea Point Property GECC Multifamily
10.07 2 Waverly 1 & II Property GECC Multifamily
10.08 2 Xx Xxxx Property GECC Multifamily
10.09 2 Ashland Property GECC Multifamily
10.10 2 Xxxx Club Property GECC Multifamily
10.11 2 The Lakes at Meadowland Property GECC Multifamily
15 2 Columbia/Brook Park MHC Rollup Loan GECC Manufactured Housing
15.01 2 Columbia Park MHC Property GECC Manufactured Housing
15.02 2 Brook Park MHC Property GECC Manufactured Housing
17 1 Radisson - Alexandria Loan GECC Hospitality
23 1 Holiday Inn - Alexandria Loan GECC Hospitality
24 1 Bayshore Shopping Center Loan GECC Retail
25 1 Sports Authority - Tempe Loan GECC Retail
30 2 Timber Ridge & Maplewood West Loan GECC Multifamily
32 1 GMH - The Ridge Loan GECC Multifamily
35 1 Ordnance Plaza 2 Loan GECC Retail
38 2 GMH - Uptown Loan GECC Multifamily
39 2 Greystone Summit Loan GECC Multifamily
40 1 Raymour & Xxxxxxxx-Seekonk Loan GECC Retail
44 2 Starlite Mobile Estates Loan GECC Manufactured Housing
45 1 Xxxxx Xxxxxx Hotel Loan GECC Hospitality
46 1 RDR Apartments Loan GECC Multifamily
46.01 1 Crestview Apartments Property GECC Multifamily
46.02 1 Valley View Apartments Property GECC Multifamily
46.03 1 Pinecrest Apartments Property GECC Multifamily
46.04 1 Hall Valley Apartments Property GECC Multifamily
46.05 1 Quarry Apartments Property GECC Multifamily
50 2 GMH - University Heights Loan GECC Multifamily
51 2 The Greens at XxXxxxxx Loan GECC Multifamily
59 1 Grand Bank Center Loan GECC Office
62 2 GMH - University Walk Loan GECC Multifamily
63 1 Xxxxxxxx Square Loan GECC Retail
73 1 Crowne Plaza Hotel - Mundelein Loan GECC Hospitality
74 2 GMH - Campus Edge Loan GECC Multifamily
75 2 The Seasons on 4th Avenue Loan GECC Multifamily
76 1 Xxxxxxx County Medical Associates Loan GECC Office
77 1 Pinewood Facility Loan GECC Xxxxxx
00 0 Xxxxx Xxxxxx Xxxx XXXX Mixed Use
85 2 Lakeshore Landings MHC Loan GECC Manufactured Housing
87 2 Greens at Derby Phase II Loan GECC Multifamily
89 1 Temecula Creek Village Loan GECC Retail
93 1 Toledo Hilton Loan GECC Hospitality
94 1 Lindbergh Plaza Loan GECC Retail
95 1 Oak Grove Crossing Loan GECC Retail
96 1 Shoppes at Xxxxxxxx Loan GECC Retail
98 1 Executive Ten Loan GECC Xxxxxx
00 0 Xxx Xxxxxx Xxxxx XX Loan GECC Retail
100 1 Elkhorn Loan GECC Retail
101 1 Aliso Viejo / Mission Viejo SS Loan GECC Self Storage
101.01 1 Aliso Viejo Property GECC Self Storage
101.02 1 Mission Viejo RV Storage Property GECC Self Storage
105 1 2100 Milvia Office Loan GECC Office
109 2 Xxxxxxxx-Pecan Portfolio Loan GECC Multifamily
109.01 2 Xxxxxxxx Village Apartments Property GECC Multifamily
109.02 2 Pecan Ridge Apartments Property GECC Multifamily
111 1 Silverlake Shopping Center Pearland Loan GECC Retail
114 1 Hawthorn Suites Naples Loan GECC Hospitality
119 1 Xxxxxxxx Professional Center Loan GECC Office
120 1 Plaza Del Rio Loan GECC Office
127 2 Cimarron Apartments Loan GECC Multifamily
128 2 Arrow Xxxx MHC Loan GECC Manufactured Housing
132 1 Walgreens - McKinney, TX Loan GECC Retail
135 1 Skyline MHC Loan GECC Manufactured Housing
137 2 Meadowbrook Apartments Loan GECC Multifamily
140 1 0000 Xxxxx Xxxxxxx Xxxxxxxxx Loan GECC Retail
141 1 OST Self-Storage Loan GECC Self Storage
145 1 CVS St Lucie Loan GECC Retail
148 0 Xxxxxx Xxx Self Storage Loan GECC Self Storage
157 2 Rio Xxxxxx Loan GECC Manufactured Housing
160 1 Four Corners Shopping Center Loan GECC Retail
165 1 Dixie Shoppes Loan GECC Retail
166 1 Alpha Business Center Loan GECC Xxxxxx
000 0 Xxxxxxxxx - Xxxxxxxxx, XX Loan GECC Retail
173 1 Central Storage at Longneck Loan GECC Self Storage
179 1 Scripps Executive Xxxxx Xxxx XXXX Xxxxxx
000 0 Xxxxxxxx Xxxxxx Loan GECC Retail
198 2 Homecrest MHC Loan GECC Manufactured Housing
199 1 Walgreens - Jasper, IN Loan GECC Retail
205 1 Xxxxxxxxxx Industrial Park - Building #3 Loan GECC Industrial
216 2 Xxxxxx Gardens MHC Loan GECC Manufactured Housing
LOAN # STREET ADDRESS CITY COUNTY STATE
------------------------------------------------------------------------------------------------------------------------------
10 Various Various Various Various
10.01 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX
10.02 0000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxxx XX
10.03 0000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxx XX
10.04 0000 Xxxx Xxx Xxxxx Xxxxxxxxx XxXxxx XX
10.05 000 Xxxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX
10.06 0000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx Xxxx XX
10.07 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx Xxxxxxx XX
10.08 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxx XxXxxx XX
10.09 0 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX
10.10 000 Xxxx Xxxx Xxxxx Xxxxxxx-Xxxxx Xxxxxxx XX
10.11 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx XX
15 Various Various Cuyahoga OH
15.01 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx XX
15.02 00000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx XX
17 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx XX
23 000 Xxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx XX
24 000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx XX
25 0000 Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX
30 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxx XX
32 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX
35 000 Xxxx Xxxxxxxx Xxxx Xxxx Burnie Anne Arundel MD
38 0000 Xxxx Xxx Xxxxxx Xxxxxx Xxxxxx XX
39 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX
40 000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx XX
44 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxx Xxxxxxx XX
45 000 Xxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxx XX
46 Various Various Various WV
46.01 0 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxx XX
46.02 0000 Xxxxxx Xxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxx XX
46.03 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX
46.04 000 Xxxx Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX
46.05 Overlook Drive Clarksburg Xxxxxxxx WV
50 0000 Xxxxxx Xxxx Xxx Xxxxxxxxx Xxxx XX
51 0000 Xxxxxxx Xxxxxx Xxxxx XxXxxxxx Xxxxxx XX
59 3501& 0000 XXX Xxxxxxxxx Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx XX
62 0000 Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX
63 0000-0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX
73 000 Xxxx Xxxxx 00 Xxxxxxxxx Xxxx XX
74 0000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx XX
75 0000 Xxxx 0xx Xxxxxx Xxxxxxxxx Xxxxxx XX
76 600, 602, 000 Xxxx Xxxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxx XX
77 0000 Xxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxxxxxxx XX
78 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxx XX
85 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxxxx XX
87 0000 Xxxx Xxxx Xxxx Xxxx Xxxxx Xxxxxxxx XX
89 31285-31333 Xxxxxxx 00 Xxxxxxxx Xxxxxxxxx XX
93 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxx XX
94 7425-7517 Xxxxx Xxxxxxxxx Xxxxxxxxx Xx. Xxxxx Xx. Xxxxx XX
00 00000 & 00000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxxxxx XX
96 0000-0000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xxxxxx XX
98 0000 Xxxxx 00 Xxxx Xxxxxxxxxx Xxxxxx NJ
99 0000-0000 Xx. Xxxx Xxxxxx Xxxxxxxx Xxxxxx XX
100 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxxx XX
101 Various Various Orange CA
101.01 36 Journey Aliso Viejo Orange CA
101.02 00000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxxxx XX
105 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX
109 Various Midlothian Xxxxx TX
109.01 000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxxxx Xxxxx TX
109.02 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxxx Xxxxx XX
111 10200 and 00000 Xxxxxxxx (XX000) Xxxxxxxx Xxxxxxxx XX
114 0000 Xxxx Xxxxx Xxxx Xxxxxx Xxxxxxx XX
119 0000 Xxxxxxxxx Xxxxxxx Virginia Beach Norfolk-Virginia Beach-Newport News VA
120 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX
127 000 Xxxxx Xxxxx Xxx Xxxxxxxxx Xxxxxxx Xxxxxx XX
128 00000 Xxxx Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX
132 0000 Xxxx Xxxxxxxxxx Xxxxx XxXxxxxx Xxxxxx XX
135 0000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxxxx XX
137 0000 Xxxxxx Xxxx Xxxx Xxxxx Xxxxxxxx XX
140 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxx Xxxxx XX
141 0000 Xxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxx XX
145 1300-1310 SW St. Lucie West Boulevard Port St. Lucie St. Lucie FL
148 0000 Xxxxxx Xxx Xxxxx Xxxxxx Xxxx XX
157 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxx XX
160 0000 Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxxxx XX
165 0000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxx XX
166 4300-4350 Alpha Road Farmers Branch Dallas TX
167 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX
173 32440 Longneck Road Millsboro Sussex DE
179 00000 Xxxxxxx Xxxxxx Xxxx Xxx Xxxxx Xxx Xxxxx XX
185 000 Xxxx Xxxxxx Xxxxxxxx Xxxxxxx XX
198 000 Xxxxx Xxxxxx Xxxx Xxxxx Xxx XX
199 3626 North Xxxxxx Street Xxxxxx Xxxxxx IN
205 0 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX
216 000 Xxxx Xxxxxx Xxxxxx Xxxxxx Xxx Xxxxxxx XX
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST PRIMARY
LOAN # ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE % SERVICING FEE
-----------------------------------------------------------------------------------------------------------------------------------
10 Various 130,500,000 130,500,000 627,995.00 7,535,940.00 5.6800 0.010
10.01 30093 16,900,000 16,900,000
10.02 30093 15,050,000 15,050,000
10.03 23321 14,400,000 14,400,000
10.04 30021 13,925,000 13,925,000
10.05 30024 13,200,000 13,200,000
10.06 23703 11,900,000 11,900,000
10.07 27106 11,550,000 11,550,000
10.08 30360 11,400,000 11,400,000
10.09 27409 11,250,000 11,250,000
10.10 27106 5,475,000 5,475,000
10.11 27409 5,450,000 5,450,000
15 Various 55,000,000 55,000,000 258,148.61 3,097,783.33 5.5400 0.010
15.01 44138 52,120,000 52,120,000
15.02 44130 2,880,000 2,880,000
17 22314 42,500,000 42,500,000 212,080.90 2,544,970.83 5.8900 0.010
23 22314 30,500,000 30,500,000 152,199.24 1,826,390.83 5.8900 0.010
24 11706 30,100,000 30,100,000 140,002.63 1,680,031.50 5.4900 0.010
25 85284 29,920,000 29,920,000 140,686.33 1,688,236.00 5.5500 0.010
30 80303 25,500,000 25,500,000 117,958.75 1,415,505.00 5.4600 0.010
32 26505 23,120,000 23,120,000 108,320.41 1,299,844.93 5.5300 0.010
35 21060 22,400,000 22,400,000 103,998.22 1,247,978.67 5.4800 0.010
38 76201 20,160,000 20,160,000 94,110.80 1,129,329.60 5.5100 0.010
39 31909 20,000,000 20,000,000 96,075.00 1,152,900.00 5.6700 0.010
40 2771 19,982,223 20,000,000 116,460.59 1,397,527.09 5.7300 0.010
44 91722 19,550,000 19,550,000 92,919.52 1,115,034.25 5.6100 0.010
45 78205 19,500,000 19,500,000 115,480.63 1,385,767.50 6.9900 0.010
46 Various 18,500,000 18,500,000 114,824.68 1,377,896.11 5.6100 0.010
46.01 26330 6,311,812 6,311,812
46.02 26505 4,354,351 4,354,351
46.03 26508 3,835,025 3,835,025
46.04 26330 2,340,963 2,340,963
46.05 26301 1,657,849 1,657,849
50 37920 18,160,000 18,160,000 85,235.98 1,022,831.73 5.5400 0.010
51 75069 17,586,684 18,743,000 88,504.99 1,062,059.85 5.9400 0.010
59 33410 15,500,000 15,500,000 75,377.36 904,528.33 5.7400 0.010
62 28213 14,760,000 14,760,000 68,902.55 826,830.60 5.5100 0.010
63 75231 14,630,000 14,630,000 76,724.19 920,690.28 6.1900 0.010
73 60060 12,000,000 12,000,000 77,316.17 927,794.02 6.0000 0.010
74 28262 11,845,000 11,845,000 55,194.41 662,332.92 5.5000 0.010
75 99336 11,500,000 11,500,000 69,244.33 830,931.97 6.0400 0.010
76 19380 11,007,309 11,100,000 67,696.21 812,354.47 6.1600 0.010
77 33611 11,000,000 11,000,000 53,959.58 647,515.00 5.7900 0.010
78 32607 10,968,474 11,000,000 68,936.06 827,232.73 5.7100 0.010
85 32839 10,000,000 10,000,000 47,190.28 566,283.33 5.5700 0.010
87 67037 9,979,097 10,000,000 56,090.67 673,088.08 5.3900 0.010
89 92592 9,540,000 9,540,000 45,746.95 548,963.40 5.6600 0.010
93 43614 9,300,000 9,300,000 55,758.20 669,098.39 6.0000
94 63125 9,200,000 9,200,000 48,871.17 586,454.00 6.2700 0.010
95 92530 9,000,000 9,000,000 42,471.25 509,655.00 5.5700 0.010
96 45011 8,995,000 8,995,000 44,886.30 538,635.59 5.8900 0.010
98 7054 8,952,036 8,960,000 52,174.34 626,092.13 5.7300 0.010
99 97071 8,650,000 8,650,000 51,306.31 615,675.69 5.9000 0.010
100 95842 8,592,000 8,592,000 41,492.20 497,906.40 5.7000 0.010
101 Various 8,500,000 8,500,000 48,957.63 587,491.57 5.6300 0.010
101.01 92656 6,379,988 6,379,988
101.02 92692 2,120,012 2,120,012
105 94704 8,000,000 8,000,000 37,481.11 449,773.33 5.5300 0.010
109 76065 7,500,000 7,500,000 35,646.88 427,762.50 5.6100 0.010
109.01 76065 5,000,000 5,000,000
109.02 76065 2,500,000 2,500,000
111 77584 7,440,000 7,440,000 36,559.33 438,712.00 5.8000 0.010
114 34109 7,073,202 7,200,000 47,407.22 568,886.67 6.2300 0.010
119 23456 6,800,000 6,800,000 39,639.77 475,677.20 5.7400 0.010
120 34205 6,600,000 6,600,000 39,062.59 468,751.03 5.8800 0.010
127 79601 6,200,000 6,200,000 35,788.62 429,463.43 5.6500 0.010
128 91724 6,099,000 6,099,000 29,298.07 351,576.86 5.6700 0.010
132 75069 5,672,000 5,672,000 30,947.06 371,364.75 6.4400 0.010
135 98901 5,250,000 5,250,000 25,531.04 306,372.50 5.7400 0.010
137 27265 5,000,000 5,000,000 23,595.14 283,141.67 5.5700 0.010
140 89118 4,956,095 5,000,000 29,720.84 356,650.13 5.9200 0.010
141 77054 4,881,000 4,881,000 28,422.21 341,066.49 5.7300 0.010
145 34986 4,750,000 4,750,000 22,415.38 268,984.58 5.5700 0.010
148 98002 4,650,000 4,650,000 24,267.83 291,214.00 6.1600 0.010
157 90723 4,200,000 4,200,000 20,033.42 240,401.00 5.6300 0.010
160 37363 4,080,000 4,080,000 23,835.70 286,028.37 5.7600 0.010
165 32821 3,980,000 3,980,000 19,489.84 233,878.07 5.7800 0.010
166 75244 3,963,742 4,000,000 24,550.70 294,608.34 6.2200 0.010
167 32626 3,944,000 3,944,000 18,912.58 226,950.91 5.6600 0.010
173 19966 3,750,000 3,750,000 21,883.98 262,607.79 5.7500 0.010
179 92131 3,300,000 3,300,000 16,383.58 196,603.00 5.8600 0.010
185 11741 3,040,000 3,040,000 14,603.40 175,240.80 5.6700 0.010
198 83705 2,350,000 2,350,000 11,388.36 136,660.33 5.7200 0.010
199 47546 2,320,000 2,320,000 12,304.38 147,652.53 6.2600 0.010
205 7728 2,196,268 2,198,000 13,447.81 161,373.70 6.1900
216 90745 2,000,000 2,000,000 9,861.67 118,340.00 5.8200 0.010
NET
MASTER TRUSTEE AND SUB SERVICIN ADMIN. MORTGAGE
LOAN # SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE % ACCRUAL TYPE TERM
------------------------------------------------------------------------------------------------------------------------------
10 0.010 0.0005 0.0205 5.65950 Actual/360 60
10.01
10.02
10.03
10.04
10.05
10.06
10.07
10.08
10.09
10.10
10.11
15 0.010 0.0005 0.0205 5.51950 Actual/360 120
15.01
15.02
17 0.010 0.0005 0.0205 5.86950 Actual/360 120
23 0.010 0.0005 0.0205 5.86950 Actual/360 120
24 0.010 0.0005 0.0205 5.46950 Actual/360 120
25 0.010 0.0005 0.0205 5.52950 Actual/360 120
30 0.010 0.0005 0.0205 5.43950 Actual/360 120
32 0.010 0.0005 0.0205 5.50950 Actual/360 60
35 0.010 0.0005 0.0205 5.45950 Actual/360 120
38 0.010 0.0005 0.0205 5.48950 Actual/360 60
39 0.010 0.0005 0.0205 5.64950 Actual/360 120
40 0.010 0.0005 0.0205 5.70950 Actual/360 120
44 0.010 0.0005 0.0205 5.58950 Actual/360 120
45 0.010 0.0005 0.0205 6.96950 Actual/360 84
46 0.010 0.0005 0.0205 5.58950 Actual/360 120
46.01
46.02
46.03
46.04
46.05
50 0.010 0.0005 0.0205 5.51950 Actual/360 60
51 0.010 0.0005 0.0205 5.91950 Actual/360 144
59 0.010 0.0005 0.0205 5.71950 Actual/360 120
62 0.010 0.0005 0.0205 5.48950 Actual/360 60
63 0.010 0.0005 0.0500 0.0705 6.11950 Actual/360 60
73 0.010 0.0005 0.0205 5.97950 Actual/360 60
74 0.010 0.0005 0.0205 5.47950 Actual/360 60
75 0.010 0.0005 0.0205 6.01950 Actual/360 120
76 0.010 0.0005 0.0205 6.13950 Actual/360 60
77 0.010 0.0005 0.0205 5.76950 Actual/360 60
78 0.010 0.0005 0.0205 5.68950 Actual/360 120
85 0.010 0.0005 0.0205 5.54950 Actual/360 120
87 0.010 0.0005 0.0205 5.36950 Actual/360 120
89 0.010 0.0005 0.0205 5.63950 Actual/360 120
93 0.010 0.0005 0.0600 0.0705 5.92950 Actual/360 120
94 0.010 0.0005 0.0205 6.24950 Actual/360 120
95 0.010 0.0005 0.0205 5.54950 Actual/360 120
96 0.010 0.0005 0.0205 5.86950 Actual/360 120
98 0.010 0.0005 0.0205 5.70950 Actual/360 120
99 0.010 0.0005 0.0205 5.87950 Actual/360 120
100 0.010 0.0005 0.0205 5.67950 Actual/360 120
101 0.010 0.0005 0.0205 5.60950 Actual/360 120
101.01
101.02
105 0.010 0.0005 0.0205 5.50950 Actual/360 120
109 0.010 0.0005 0.0205 5.58950 Actual/360 120
109.01
109.02
111 0.010 0.0005 0.0205 5.77950 Actual/360 120
114 0.010 0.0005 0.0205 6.20950 Actual/360 120
119 0.010 0.0005 0.0205 5.71950 Actual/360 120
120 0.010 0.0005 0.0205 5.85950 Actual/360 120
127 0.010 0.0005 0.0400 0.0605 5.58950 Actual/360 120
128 0.010 0.0005 0.0205 5.64950 Actual/360 120
132 0.010 0.0005 0.0205 6.41950 Actual/360 120
135 0.010 0.0005 0.0205 5.71950 Actual/360 60
137 0.010 0.0005 0.0205 5.54950 Actual/360 120
140 0.010 0.0005 0.0205 5.89950 Actual/360 120
141 0.010 0.0005 0.0205 5.70950 Actual/360 120
145 0.010 0.0005 0.0205 5.54950 Actual/360 120
148 0.010 0.0005 0.0205 6.13950 Actual/360 84
157 0.010 0.0005 0.0205 5.60950 Actual/360 120
160 0.010 0.0005 0.0205 5.73950 Actual/360 120
165 0.010 0.0005 0.0205 5.75950 Actual/360 120
166 0.010 0.0005 0.0205 6.19950 Actual/360 120
167 0.010 0.0005 0.0205 5.63950 Actual/360 120
173 0.010 0.0005 0.0205 5.72950 Actual/360 120
179 0.010 0.0005 0.0205 5.83950 Actual/360 120
185 0.010 0.0005 0.0205 5.64950 Actual/360 120
198 0.010 0.0005 0.0205 5.69950 Actual/360 120
199 0.010 0.0005 0.0205 6.23950 Actual/360 120
205 0.010 0.0005 0.0600 0.0705 6.11950 Actual/360 120
216 0.010 0.0005 0.0205 5.79950 Actual/360 120
MONTHLY
PAYMENT MATURITY/ AMORT ARD
LOAN # DATE REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN STEP UP
--------------------------------------------------------------------------------------------------------------------------------
10 1 57 5/1/2012 0 0 Fee
10.01 Fee
10.02 Fee
10.03 Fee
10.04 Fee
10.05 Fee
10.06 Fee
10.07 Fee
10.08 Fee
10.09 Fee
10.10 Fee
10.11 Fee
15 1 118 6/1/2017 0 0 Fee
15.01 Fee
15.02 Fee
17 1 118 6/1/2017 0 0 Fee
23 1 118 6/1/2017 0 0 Fee
24 1 118 6/1/2017 0 0 Fee
25 1 117 5/1/2017 0 0 Fee
30 1 116 4/1/2017 0 0 Fee
32 1 57 5/1/2012 0 0 Fee
35 1 116 4/1/2017 0 0 Fee
38 1 57 5/1/2012 0 0 Fee
39 1 118 6/1/2017 0 0 Fee
40 1 119 7/1/2017 360 359 Fee
44 1 118 6/1/2017 0 0 Fee
45 1 83 7/1/2014 0 0 Fee
46 1 120 8/1/2017 300 300 Fee
46.01 Fee
46.02 Fee
46.03 Fee
46.04 Fee
46.05 Fee
50 1 57 5/1/2012 0 0 Fee
51 1 87 11/1/2014 0 0 Fee
59 1 118 6/1/2017 0 0 Fee
62 1 57 5/1/2012 0 0 Fee
63 1 59 7/1/2012 0 0 Leasehold
73 1 57 5/1/2012 300 300 Fee
74 1 57 5/1/2012 0 0 Fee
75 1 119 7/1/2017 360 360 Fee
76 1 51 11/1/2011 360 351 Fee/Leasehold Yes 2.5
77 1 58 6/1/2012 0 0 Fee
78 1 118 6/1/2017 300 298 Fee
85 1 117 5/1/2017 0 0 Fee
87 1 118 6/1/2017 360 358 Fee
89 1 119 7/1/2017 0 0 Fee
93 1 117 5/1/2017 360 360 Leasehold
94 1 120 8/1/2017 0 0 Fee
95 1 116 4/1/2017 0 0 Fee
96 1 119 7/1/2017 0 0 Fee
98 1 119 7/1/2017 360 359 Fee
99 1 119 7/1/2017 360 360 Fee
100 1 119 7/1/2017 0 0 Fee
101 1 118 6/1/2017 360 360 Fee
101.01 Fee
101.02 Fee
105 1 119 7/1/2017 0 0 Fee
109 1 117 5/1/2017 0 0 Fee
109.01 Fee
109.02 Fee
111 1 118 6/1/2017 0 0 Fee
114 1 107 7/1/2016 300 287 Fee
119 1 117 5/1/2017 360 360 Fee
120 1 120 8/1/2017 360 360 Leasehold
127 1 113 1/1/2017 360 360 Fee
128 1 117 5/1/2017 0 0 Fee
132 1 119 7/1/2017 0 0 Fee
135 1 58 6/1/2012 0 0 Fee
137 1 119 7/1/2017 0 0 Fee
140 1 111 11/1/2016 360 351 Fee
141 1 117 5/1/2017 360 360 Fee
145 1 118 6/1/2017 0 0 Fee
148 1 83 7/1/2014 0 0 Fee
157 1 116 4/1/2017 0 0 Fee
160 1 118 6/1/2017 360 360 Fee
165 1 118 6/1/2017 0 0 Fee
166 1 110 10/1/2016 360 350 Fee
167 1 117 5/1/2017 0 0 Fee
173 1 117 5/1/2017 360 360 Fee
179 1 117 5/1/2017 0 0 Fee
185 1 118 6/1/2017 0 0 Fee
198 1 117 5/1/2017 0 0 Fee
199 1 120 8/1/2017 0 0 Leasehold
205 1 119 7/1/2017 360 359 Fee
216 1 116 4/1/2017 0 0 Fee
PARTIAL
ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF LOCKBOX
LOAN # INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT TYPE
------------------------------------------------------------------------------------------------------------------------------
10 No 0 Soft at Closing, Springing Hard
10.01 0
10.02 0
10.03 0
10.04 0
10.05 0
10.06 0
10.07 0
10.08 0
10.09 0
10.10 0
10.11 0
15 No Yes 0
15.01 0
15.02 0
17 No Yes Soft
23 No 0 Soft
24 No Yes
25 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0 Hard
38 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0
45 No 0
46 No Yes 0
46.01 0
46.02 0
46.03 0
46.04 0
46.05 0
50 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0
63 Yes Yes 0
73 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0 None at Closing, Springing Hard
77 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0
89 No 0
93 Xx 0
00 Xx 0
00 Xx 0
00 Xx 0
98 Xx 0
00 Xx 0
000 Xx 0
000 Xx 0
101.01 0
101.02 0
105 No 0
109 No 0
109.01 0
109.02 0
111 Xx 0
000 Xx 0
000 Xx 0
000 Xx 0
127 Xx 0
000 Xx 0
000 Xx 0 Hard
135 Xx 0
000 Xx 0
000 Xx Yes
141 Xx 0
000 Xx 0
000 Xx 0
000 Xx 0
160 No 0
165 No Yes
166 Xx 0
000 Xx 0
000 Xx 0
000 Xx 0
185 Xx 0
000 Xx 0
000 Xx 0 Hard
205 No 0
216 No 0
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
HOLDBACK ENGINEERING CAPEX TI/LC RE TAX INS. OTHER
LOAN # AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
----------------------------------------------------------------------------------------------------------------------
10 940,270 45,000
10.01
10.02
10.03
10.04
10.05
10.06
10.07
10.08
10.09
10.10
10.11
15 429,625 3,252,000
15.01
15.02
17
23
24 103,226 2,100
25
30 38,120 11,918
32 31,281 27,766
35 2,381 135,059 59,225 116,250
38 209,784 23,842
39 6,125 124,157 28,572 185,459
40 46,534
44 23,319
45 94,450 66,671
46 84,676 2,159,300
46.01
46.02
46.03
46.04
46.05
50 115,815 30,286
51 108,625 319,000 22,750
59 5,000 193,338 24,607 82,362
62 68,509 18,295
63 20,454 4,394 518,872
73 84,039
74 42,639 13,167
75 44,039 29,495
76 8,210 3,220 1,800,000
77 86,831 23,674
78 100,163 16,292
85
87 141,035 12,408
89 240,000
93 15,862
94
95 1,365,190
96 89,025
98 6,250 40,599 2,514 116,520
99 27,041 9,073 48,765
100 28,125 25,000 2,919 11,736
101 16,807 6,820
101.01
101.02
105
109 72,001 11,090
109.01
109.02
111 52,069 4,127
114 53,472 60,426
119 23,416 1,689
120 93,339 13,354 246,100
127 11,798 14,802 200,000
128 4,460
132 100,000
135 295,000 12,418 2,458
137 11,813 37,576 19,976
140 8,392 2,636 18,686
141 56,089
145
148
157 1,374
160 22,173 3,089
165 12,846
166 31,563 43,282 11,496 48,675
167 104,000
173 9,961 848
179 14,888 3,178 1,167
185 1,876
198 17,033 936 30,000
199
205 21,516 11,848
216 2,627
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX CAPEX TI/LC TI/LC RE TAX
LOAN # RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($) RESERVE ($)
----------------------------------------------------------------------------------------------------------
10 60,519 143,996
10.01
10.02
10.03
10.04
10.05
10.06
10.07
10.08
10.09
10.10
10.11
15 880 50,875
15.01
15.02
17
23
24 51,613
25
30 9,327 335,775 9,530
32 6,709 15,640
35 3,868 2,083 160,000 16,882
38 5,879 125,870
39 4,281 17,737
40 15,511
44 7,773
45 16,668
46 14,113
46.01
46.02
46.03
46.04
46.05
50 6,625 23,163
51 5,800 208,800 54,284
59 772 2,665 24,167
62 5,000 13,702
63 3,409
73 26,170 10,505
74 4,000 8,528
75 2,450 58,800 11,010
76 1,135 8,210
77 10,854
78 1,565 6,250 225,000 14,309
85
87 3,200 76,800 17,629
89
93 17,970 13,253
94
95
96
98 1,355 7,460 250,000 13,533
99 13,520
100 1,825 75,000 6,250
101 1,044 11,202
101.01
101.02
105
109 4,000 12,000
109.01
109.02
111 370 2,473 89,043 10,414
114 8,855 6,689
119 747 2,522 90,780 3,903
120 945 5,150 10,371
127 7,361 11,798
128 4,460
132
135 535 4,139
137 3,170 5,368
140 355 2,745 2,784
141 627 8,013
145
148 875 20,442
157 1,374
160 520 1,565 93,900 4,435
165 2,569
166 620 1,530 8,115
167
173 844 906
179 760 1,744 3,178
185 938
198 315 2,839
199
205 563 1,134 7,172
216 2,627
MONTHLY MONTHLY
INS. OTHER XXXXX XXXXX
LOAN # RESERVE ($) RESERVE ($) TO LATE TO DEFAULT
----------------------------------------------------------------------------
10 62,500 5 5
10.01
10.02
10.03
10.04
10.05
10.06
10.07
10.08
10.09
10.10
10.11
15 5 5
15.01
15.02
17 0 7 5
23 7 5
24 5 5
25 5 8
30 3,973 5 5
32 4,628 5 5
35 6,502 5 5
38 3,974 5 5
39 3,175 5 5
40 5 5
44 5 5
45 5 5
46 5 5
46.01
46.02
46.03
46.04
46.05
50 5,048 5 5
51 4,046 5 5
59 12,304 5 5
62 3,049 5 5
63 879 5 5
73 5 5
74 2,195 5 5
75 2,548 5 5
76 1,610 5 5
77 7,891 5 5
78 8,146 5 5
85 5 5
87 2,482 5 5
89 5 5
93 3,965 5 5
94 5 5
95 5 5
96 5 5
98 838 5 5
99 825 5 5
100 584 5 5
101 1,364 5 5
101.01
101.02
105 5 5
109 2,773 7 5
109.01
109.02
111 516 5 5
114 7,416 5 5
119 563 5 5
120 2,226 5 5
127 3,701 5 5
128 5 5
132 5 5
135 410 5 5
137 2,497 15 5
140 379 5 5
141 7 7
145 5 5
148 5 5
157 5 5
160 1,545 5 5
165 5 5
166 1,102 5 5
167 5 5
173 424 5 5
179 292 5 5
185 5 5
198 468 5 5
199 5 5
205 1,185 5 5
216 5 5
EXHIBIT A
FREE WRITING PROSPECTUS DATED JULY 31, 2007
Xxxxxxx Xxxxx Mortgage Trust 2007-C1
The information in this material clarifies, updates or modifies
certain of the information contained in the free writing prospectus, dated July
16, 2007 (the "7/16/07 FWP") and the preliminary structural and collateral term
sheet, dated July 13, 2007.
Collateral Updates:
Six mortgage loans have been removed from the mortgage pool. They
are identified on the file attached to this material captioned "MLMT 07-C1 Annex
Changes".
With respect to the DRA/Colonial Office Portfolio loan (loan number
4), the related borrower's interest in one of the nineteen constituent
properties, known as the Peachtree Street, is comprised of a condominium
interest for approximately 92% of the related units. The condominium association
owns an adjacent parking garage that services the Peach Street property but the
parking garage is neither a current common element of the condominium regime nor
collateral for the DRA/Colonial Office Portfolio loan. The holder of the
mortgage lien on the parking garage has agreed, however, that it will not take
any enforcement action while the DRA/Colonial Office Portfolio loan is
outstanding and its lien will be extinguished in the event of a foreclosure of
the DRA/Colonial Office Portfolio loan.
With respect to the DRA/Colonial Office Portfolio loan (loan number
4), the $153,684,437 future advance contemplated by the loan documents has now
been funded.
With respect to the Och-Ziff Retail Portfolio loan (loan number 5) ,
the largest tenant, Xxx Xxxxxxx and Xxx Xxxxxxx d/b/a America's Custom Design
Center ("America's Custom"), at Colonial Promenade Hunter's Creek (one of the 11
mortgaged properties securing the Och-Ziff Retail Portfolio loan) (the "Center")
has vacated its premises. Before America's Custom vacated its premises, the
Center was 100% occupied and the Och-Ziff Retail Portfolio was 94.8% occupied,
and, as of the date hereof, the Center is 52.6% occupied and the Och-Ziff Retail
Portfolio is 90.1% occupied. Colonial Properties Trust, an Alabama real estate
investment trust ("CPT Reit") (NYSE:CLP), which entity owns an indirect interest
in the Och-Ziff Retail Portfolio borrower, has provided a guaranty in favor of
the Och-Ziff Retail Portfolio borrower pursuant to which CPT Reit guaranteed
lease payments (in the amount that is due under the lease executed by America's
Custom) with respect to the vacated premises through September 30, 2011. No
assurance can be given that CPT Reit will perform its obligations under the
guarantee if and when called upon to do so.
With respect to the Xxxx & Sylmar Biomedical Parks loan (loan number
13), historic monitoring since 2002 of groundwater impacted by volatile organic
compounds shows a general trend of stable or declining concentrations.
An April 2007 site remediation closure strategy states that, based
on information provided by the Regional Water Quality Control Board (RWQCB), the
mortgaged real property
-1-
is appropriate for site closure. The site remediation closure strategy
recommends implementation of a land use restriction prohibiting the use of
groundwater for potable or irrigation purposes. A Phase I environmental site
assessment performed on June 1, 2007 recommends annual review of regulatory
files at the RWQCB until such time that site closure is granted. The related
mortgage loan seller has not received notification that the RWQCB has granted
site closure or that the RWQCB is not requiring active remediation.
With respect to the Lindbergh Plaza loan (loan number 94), the local
jurisdiction has notified Home Depot, anchor tenant at the mortgaged property,
that the tenant's operation of an outdoor sales area constitutes a zoning
violation. While the tenant is seeking to obtain the necessary permits for such
operations, there is no assurance that such permits will be granted, or that the
inability of the tenant to conduct such sales would not materially adversely
affect the tenant and the related mortgage loan.
With respect to the Hawthorn Suites Naples loan (loan number 114)
the loan allows for future mezzanine debt with a maximum combined LTV of 75% and
a minimum combined DSCR of 1.20x.
With respect to the Melrose Ave. Retail loan (loan number 252),
which was determined to be likely to experience a probable maximum loss of
approximately 22% of the estimated replacement cost of the improvements, the
related borrower was not required to maintain earthquake insurance.
18 of the mortgaged real properties, which represent security for
approximately 3.8% of the initial mortgage pool balance and approximately 2.1%
of the initial loan group 1 balance, and approximately 7.2% of the initial loan
group 2 balance, are secured by student housing facilities or multifamily
properties predominantly rented by students.
Capmark Finance Inc. is anticipated to be a sub-servicer for
mortgage loans aggregating more than 10%, but less than 20%, of the initial
mortgage pool balance.
It is anticipated that Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx
Incorporated, the lead manager, will hold in its name any offered certificates
that have not been sold by the date hereof. Xxxxxxx Xxxxx intends to continue
marketing these unsold certificates after the Closing Date. Xxxxxxx Xxxxx has
agreed with one or more of the mortgage loan sellers that sold (to the
depositor) the mortgage loans constituting the related trust fund to share in
any losses or gains in connection with the sale of the unsold certificates
pursuant to an arrangement whereby specified percentages of the losses or gains
resulting from such sales will be allocated between Xxxxxxx Xxxxx and such
mortgage loan seller.
Please see the attached file captioned "MLMT 07-C1 Annex Changes"
for additional modifications to mortgage loan information in the 7/16/07 FWP
Free Writing Prospectus Legend
The depositor has filed a registration statement (including a
prospectus) with the SEC (SEC File No. 333-142235) for the offering to which
this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the
-2-
depositor has filed with the SEC for more complete information about the
depositor, the issuing entity and this offering.
You may get these documents for free by visiting XXXXX on the SEC
Web site at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll free 000-000-0000.
Information in this material regarding any assets backing any
securities discussed herein supersedes all prior contrary information regarding
such assets.
This material is for your information and none of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co. or Xxxxxx Xxxxxxx &
Co. Incorporated (the "Underwriters") is soliciting any action based upon it.
The Underwriters and their affiliates, officers, directors, partners and
employees, including persons involved in the preparation of issuance of this
material may, from time to time, have long or short positions in, and buy and
sell, the securities mentioned herein or derivatives thereof (including
options).
Any legends, disclaimers or other notices that may appear in the
text of, at the bottom of, or attached to, an email communication to which this
material may have been attached, that are substantially similar to or in the
nature of the following are not applicable to these materials and should be
disregarded:
(i) disclaimers regarding accuracy or completeness of the
information contained herein or restrictions as to reliance on the information
contained herein by investors;
(ii) disclaimers of responsibility or liability;
(iii) statements requiring investors to read or acknowledge that
they have read or understand the registration statement or any disclaimers or
legends;
(iv) language indicating that this communication is neither a
prospectus nor an offer to sell or a solicitation or an offer to buy;
(v) statements that this information is privileged, confidential
or otherwise restricted as to use or reliance; and
(vi) legends that information contained in these materials will be
superseded or changed by the final prospectus, if the final prospectus is not
delivered until after the date of the contract for sale.
Such legends, disclaimers or other notices have been automatically
generated as a result of these materials having been sent via Bloomberg or
another email system.
-0-
XXXX 0000-X0
7/30/2007
--------------------------------------------------------------------------------
LOANS THAT HAVE BEEN REMOVED FROM THE MORTGAGE POOL
--------------------------------------------------------------------------------
LOAN NUMBER 41 0000 0xx Xxxxxx 7,900,000
LOAN NUMBER 42 00000 Xxxxxxxx Xxxxxxxxx 6,400,000
LOAN NUMBER 43 0000 0xx Xxxxxx 5,250,000
LOAN NUMBER 000 Xxxxxxxxx Xxxxxx 3,300,000
LOAN NUMBER 200 Royal Coach Village MHP 2,300,000
LOAN NUMBER 213 Walgreens - Swansboro, NC 2,080,000
ANNEX A-1 TO THE 7/16/07 FWP IS HEREBY AMENDED WITH RESPECT TO THE REVISED
CHARACTERISTICS SET FORTH BELOW:
------------------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME CHARACTERISTIC 7/23/07 FWP VALUE 7/16/07 FWP VALUE
------------------------------------------------------------------------------------------------------------------------------
5.00 Och - Ziff Retail Portfolio Occupancy % 90.1 94.8
5.06 Colonial Promenade Hunter's Occupancy % 52.6 100
Creek
5.06 Colonial Promenade Hunter's Largest Tenant Name Publix Xxx Xxxxxxx and Xxx Xxxxxxx
Creek d/b/a America's Custom
Design Center
5.06 Colonial Promenade Hunter's Largest Tenant Unit Size 56,000.00 107806
Creek
5.06 Colonial Promenade Hunter's Largest Tenant Lease 11/18/2012 9/30/2011
Creek Expiration
5.06 Colonial Promenade Hunter's 2nd Largest Tenant Name Frank's Place Publix #0427
Creek
5.06 Colonial Promenade Hunter's 2nd Largest Tenant Unit 7,700 56,000
Creek Size
5.06 Colonial Promenade Hunter's 2nd Largest Tenant Lease 12/31/2011 11/18/2012
Creek Expiration
5.06 Colonial Promenade Hunter's 3rd Largest Tenant Crispers Frank's Place
Creek Name
5.06 Colonial Promenade Hunter's 3rd Largest Tenant Unit 5,400 7,700
Creek Size
5.06 Colonial Promenade Hunter's 3rd Largest Tenant Lease 10/31/2015 12/31/2011
Creek Expiration
13.00 Xxxx & Sylmar Biomedical Parks Appraised Value 108,500,000 102,000,000
13.00 Xxxx & Sylmar Biomedical Parks Maturity LTV 59.9 63.7
13.00 Xxxx & Sylmar Biomedical Parks Cut-Off Date LTV 59.9 63.7
------------------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME CHARACTERISTIC 7/23/07 FWP VALUE 7/16/07 FWP VALUE
------------------------------------------------------------------------------------------------------------------------------
13.01 Xxxx Biomedical Park Appraised Value 86,500,000 80,000,000
21.00 FIDM Los Angeles UW DSCR 1.20 1.19
21.00 FIDM Los Angeles UW Revenues 4,765,002 4,767,472
21.00 FIDM Los Angeles UW Expenses 1,658,381 1,684,179
21.00 FIDM Los Angeles UW NCF 2,895,595 2,872,266
21.00 FIDM Los Angeles UW NOI 3,106,621 3,083,293
51.00 The Greens at XxXxxxxx Original Prepayment LO(81),Def(60),O(3) LO(47), Def(94),O(3)
Provision (Payments)
00.00 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx X&X Debt Service 732,861 737,419
82.00 Forest Meadow Apartments Maturity/ARD Balance 9,883,574 9,889,373
82.00 Forest Meadow Apartments Maturity LTV 74.3 74.4
82.00 Forest Meadow Apartments Interest Rate 6.3360 6.3900
82.00 Forest Meadow Apartments Original Prepayment LO(24),Def(93),O(3) LO(24),DeforYM1%(93),O(3)
Provision (Payments)
00.00 Xxxxxxxxx Xxxxx Xxxxxx X&X Debt Service 586,454 562,135
94.00 Lindbergh Plaza Interest Rate 6.2700 6.0100
94.00 Lindbergh Xxxxx XX XXXX 0.00 0.00
00.00 Xxxxxxxxx Xxxxx XX Xxxxxxxx 1,094,395 1,078,769
94.00 Lindbergh Plaza UW Expenses 366,168 365,699
94.00 Xxxxxxxxx Xxxxx XX XXX 000,000 000,000
00.00 Xxxxxxxxx Xxxxx XX XXX 728,227 713,070
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxx X&X Debt Service 573,975 579,736
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Maturity/ARD Balance 6,450,448 6,486,708
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Maturity LTV 56.1 56.4
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Cut-Off Date Balance 7,470,000 7,500,000
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Interest Rate 6.6250 6.6830
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx Original Balance 7,470,000 7,500,000
108.00 000 Xxxxxx Xxxxxx Xxxxxxxxx XX XXXX 1.35 1.34
143.00 Xxxxxx Portfolio Original Prepayment LO(24),Def(95),O(1) LO(24),Def(93),O(3)
Provision (Payments)
161.00 Cottonwood Crest Annual P&I Debt Service 292,171 288,098
161.00 Cottonwood Crest Maturity/ARD Balance 3,917,429 3,912,214
161.00 Cottonwood Crest Maturity LTV 76.8 76.7
------------------------------------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME CHARACTERISTIC 7/23/07 FWP VALUE 7/16/07 FWP VALUE
------------------------------------------------------------------------------------------------------------------------------
161.00 Cottonwood Crest Interest Rate 6.3920 6.2700
161.00 Cottonwood Crest Original Prepayment LO(24),Def(93),O(3) LO(24),DeforYM1%(93),O(3)
Provision (Payments)
161.00 Cottonwood Crest UW DSCR 1.27 1.28
199.00 Walgreens - Jasper, IN Annual P&I Debt Service 147,653 148,832
199.00 Walgreens - Jasper, IN Interest Rate 6.2600 6.3100
199.00 Walgreens - Jasper, IN UW DSCR 1.36 1.34
