EXHIBIT 99.1
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 1, 2007
(this "Agreement"), is entered into between WACHOVIA BANK, NATIONAL ASSOCIATION
(the "Seller") and WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. 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 (each, a "Class") 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 (the "Pooling and Servicing Agreement"), dated as of June 1,
2007, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (in such capacity, the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer") and Wells Fargo
Bank, N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein (including the Schedules attached hereto) have the respective meanings
set forth in the Pooling and Servicing Agreement.
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 $3,742,335,069 (the "Wachovia 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 Wachovia 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 (the
"Cut-Off Date Pool Balance") of $3,823,853,069 (subject to a variance of plus or
minus 5.0%). The purchase and sale of the Mortgage Loans shall take place on
June 28, 2007, or such other date as shall be mutually acceptable to the parties
to this Agreement (the "Closing Date"). The consideration (the "Aggregate
Purchase Price") for the Mortgage Loans shall be equal to (i) % of the
Wachovia Mortgage Loan Balance as of the Cut-Off Date, plus (ii) $13,402,198,
which amount represents the amount of interest accrued on the Wachovia Mortgage
Loan Balance at the related Net Mortgage Rate for the period from and including
the Cut-Off Date up to but not including the Closing Date.
The Aggregate Purchase Price 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 receipt by the
Seller of the Aggregate Purchase Price and satisfaction of the other conditions
to closing that are for the benefit of the Seller, 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, 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.
(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 on or 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 interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, 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 "Wells Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or copy of the Mortgage, together with 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 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
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "Wells Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2007-C32", 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 "Wells Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(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 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 (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such 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 and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "Wells Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C32, as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum of
Ground Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan;
(xiii) copies of any management agreement with respect to the
related Mortgaged Property;
(xiv) copies of any cash management agreements with respect to the
related Mortgaged Property;
(xv) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and applicable transfer or assignment
documents; and
(xvi) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Intercreditor
Agreement; provided that a copy of each Mortgage Note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
Notwithstanding the foregoing, with respect to the Beacon D.C. & Seattle
Pool Loan, the MS 2007-IQ14 Trustee will hold the original documents
related to the Beacon D.C. & Seattle Pool Loan for the benefit of the MS
2007-IQ14 Trust Fund.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust Fund pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(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.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized and
validly existing and in good standing under the laws of the United States
of America and possesses all requisite authority, power, licenses, permits
and franchises to carry on its business as currently conducted by it and
to execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
relating to or affecting the enforcement of creditors' rights in general,
as they may be applied in the context of the insolvency of a national
banking association, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law), and by public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities laws;
(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 articles of association or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
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;
(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 have consequences
that would 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 articles of association, 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);
(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) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement;
(viii) The Seller has caused each Servicing Participant which
services a Mortgage Loan to comply, as evidenced by written documentation
between each Servicing Participant and the Seller, with all reporting
requirements set forth in Sections 3.13, 3.14, 3.22 and 8.17 of the
Pooling and Servicing Agreement applicable to such Servicing Participant
for the Mortgage Loans set forth on Exhibit C, for so long as the Trust
Fund is subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended;
(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 Aggregate Purchase Price. 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 Seller has examined the Disclosure Material set forth in the
Preliminary Prospectus Supplement (as defined below), the Prospectus
Supplement to the accompanying Prospectus (as defined below), the
Preliminary Memorandum, the Class A-4M Memorandum, the Class A-MM
Memorandum and the Memorandum, relating to the Certificates. The Seller
hereby represents and warrants that the Disclosure Material is
appropriately responsive in all material respects to the applicable
requirements of Items 1104, 1110, 1111, 1117 and 1119 of Regulation AB
with respect to the Seller and the Wachovia Mortgage Loans; and
(xi) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser
(or, with respect to any Companion Loan that is deposited into another
securitization, the depositor in such other securitization) and the
Trustee with any Additional Form 10-K Disclosure and any Additional Form
10-D Disclosure set forth next to the Purchaser's name on Exhibit U and
Exhibit W, respectively, of the Pooling and Servicing Agreement within the
time periods set forth in the Pooling and Servicing Agreement.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) above shall be held by the Trustee until the earlier of (x)
the date on which the Master Servicer certifies to the Trustee and the
Controlling Class Representative that such exception has been cured (or the
Trustee certifies the same to the Controlling Class Representative), at which
time such funds or letter of credit, as applicable, shall be returned to the
Seller and (y) thirty (30) Business Days or, if the Controlling Class
Representative has extended the cure period, forty-five (45) Business Days after
the Closing Date; provided, however, that if such exception is not cured within
such thirty (30) Business Days or forty-five (45) Business Days, as the case may
be, (A) in the case of clause (2), the Trustee shall retain the funds on deposit
in the related Special Reserve Account, or letter of credit, as applicable, or
(B) in the case of clause (3), the Seller shall repurchase the related Mortgage
Loan in accordance with the terms and conditions of this Agreement, at which
time such funds shall be applied to the Purchase Price of the related Mortgage
Loan and any letter of credit will be returned to the Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than ninety (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 ninety (90)
days from the date that any party to the Pooling and Servicing Agreement
discovers such Document Defect or Breach; provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the applicable Mortgage Loan, the interest of
the Trust Fund therein or the interests of any Certificateholder, cure such
Document Defect or Breach, as the case may be, in all material respects, which
shall include payment of actual or provable losses and any Additional Trust Fund
Expenses directly resulting from any such Document Defect or Breach or, if such
Document Defect or Breach (other than omissions solely due 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 at the applicable
Purchase Price not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage 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 Master Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that unless the Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, and 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, such Seller shall have an additional ninety
(90) days to complete such cure (or, failing such cure, to repurchase or
substitute the related Mortgage Loan); provided, further, that with respect to
such additional 90-day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth 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; provided, further, that no Document Defect (other than with respect to a
Mortgage Note, Mortgage, title insurance policy, Ground Lease, any letter of
credit, any franchise agreement, any comfort letter and (if required) any
comfort letter transfer documents (collectively, the "Core Material Documents"))
shall be considered to materially and adversely affect the value of the related
Mortgage Loan, the interests of the Trust Fund therein or the interests of any
Certificateholder 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 borrower 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 significant servicing obligations; provided, further,
with respect to Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust Fund therein or
the value of the related Mortgage Loan, other than with respect to Document
Defects relating to the Core Material Documents, any applicable cure period
following the initial 90-day cure period may be extended by the Master Servicer
or the Special Servicer if the document involved is not needed imminently. Such
extension will end upon thirty (30) days notice of such need as reasonably
determined by the Master Servicer or Special Servicer (with a possible thirty
(30) day extension if the Master Servicer or Special Servicer agrees that the
Seller is diligently pursuing a cure). The Seller shall cure all Document
Defects which materially and adversely affect the interests of any
Certificateholder, the interests of the Trust Fund therein or the value of the
related Mortgage Loan, regardless of the document involved, no later than two
years following the Closing Date; provided that the initial 90-day cure period
referenced in this paragraph may not be reduced. 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, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure. Notwithstanding the foregoing, the delivery
of a commitment to issue a policy of lender's title insurance as described in
Representation 12 of Schedule I hereof 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 Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable 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 Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining 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 Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies 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 Loans 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 that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
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 otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred in good faith by the Purchaser in connection with such
modification or accommodation (including, but not limited to, recoverable
attorney fees) shall be paid by the Seller.
(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 Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
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 Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, 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 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 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 substituted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee 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. Nothing in this Agreement shall prohibit the
Purchaser or its assigns (including the Master Servicer and/or the Special
Servicer) from pursuing any course of action authorized by the Pooling and
Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the Seller in writing of its
intention to liquidate such Defaulted Mortgage Loan or REO Property at least 45
days prior to any such action. If (a) the Seller consents to such sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or REO Property or
(b) a court of competent jurisdiction determines that the Seller is liable under
this Agreement to repurchase such Defaulted Mortgage Loan or REO Property, then
such Seller shall remit to the Purchaser an amount equal to the difference if
any of the price of such Defaulted Mortgage Loan or REO Property as sold and the
price at which the Seller would have had to repurchase such Defaulted Mortgage
Loan or REO Property under this Agreement. The Seller shall have ten (10)
Business Days after receipt of notice to determine whether or not to consent to
such sale. If the Seller does not consent to such sale, the Special Servicer
shall contract with a Determination Party (as defined in the Pooling and
Servicing Agreement) as to the merits of such proposed sale. If the related
Determination Party determines that such proposed sale is in accordance with the
Servicing Standard and the provisions of the Pooling and Servicing Agreement
with respect to the sale of Defaulted Mortgage Loans and REO Properties and,
subsequent to such sale, a court of competent jurisdiction determines that the
Seller was liable under this Agreement and required to repurchase such Defaulted
Mortgage Loan or REO Property in accordance with the terms hereof, then the
Seller shall remit to the Purchaser an amount equal to the difference (if any)
between the proceeds of the related action and the price at which the Seller
would have been obligated to pay had the Seller repurchased such Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the terms hereof including the costs
related to contracting with the related Determination Party; provided that the
foregoing procedure in this Section 3(f) shall not preclude such Seller from
repurchasing the Defaulted Mortgage Loan or REO Property prior to the execution
of a binding contract of sale with a third party in accordance with the other
provisions of this Section 3 (excluding this Section 3(f)). If the related
Determination Party determines that the sale of the related Defaulted Mortgage
Loan or REO Property is not in accordance with the Servicing Standard and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and the Special Servicer
subsequently sells such Mortgage Loan or REO Property, then the Seller will not
be liable for any such difference (nor any cost of contracting with the
Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
ninety (90) days of the Seller's receipt of such direction, the amount of any
such costs and expenses borne by the Purchaser, the Certificateholders, the
Master Servicer, the Special Servicer and the Trustee on their behalf that are
the basis of such Breach. Upon its making such deposit, the Seller shall be
deemed to have cured such Breach in all respects. Provided such payment is made
in full, this paragraph describes the sole remedy available to the Purchaser,
the Certificateholders, the Master Servicer, the Special Servicer and the
Trustee on their behalf regarding any such Breach and the Seller shall not be
obligated to repurchase the affected Mortgage Loan on account of such Breach or
otherwise cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants 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 North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(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 obligation 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,
reorganization, receivership 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) 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.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution, delivery or
performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
require or will require the consent of any third person or constitutes or will
constitute a default under (A) any term or provision of the Purchaser's
certificate of incorporation or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) 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 Price.
(f) 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 its obligations under the terms of this Agreement.
(g) 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 governmental agency or body, which default might have consequences
that would 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 Cadwalader, Wickersham & Taft
LLP, Charlotte, North Carolina 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) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and 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, the Initial
Purchaser 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 Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;;
(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 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;
and
(f) The letters shall have been received from the independent
accounting firm KPMG LLP, in form satisfactory to the Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus, the Preliminary Prospectus Supplement, the Prospectus
Supplement, the Preliminary Memorandum the Class A-4M Memorandum, the Class A-MM
Memorandum and the Memorandum.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A 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 or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(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 the Initial Purchaser may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Preliminary Prospectus Supplement together with all
other Time of Sale Information delivered prior to the Time of Sale and nothing
has come to his attention that would lead him to believe that the Specified
Portions of the Preliminary Prospectus Supplement together with all other Time
of Sale Information delivered prior to the Time of Sale, 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
of the Prospectus Supplement and nothing has come to his attention that would
lead him 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, (iii) such officer has
examined the Specified Portions of the Memorandum, the Class A-4M Memorandum and
the Class A-MM Memorandum and nothing has come to his attention that would lead
him to believe that the Specified Portions of the Memorandum, the Class A-4M
Memorandum and the Class A-MM 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 Preliminary Prospectus Supplement or
the Prospectus Supplement, as applicable, shall consist of Annex A and Annex D
thereto, the diskette which accompanies the Prospectus Supplement (insofar as
such diskette is consistent with such Annex A) and the following sections of the
Preliminary Prospectus Supplement or the Prospectus Supplement, as applicable
(exclusive of any statements in such sections that purport to summarize the
servicing and administration provisions of the Pooling and Servicing Agreement):
"SUMMARY OF PROSPECTUS SUPPLEMENT--THE PARTIES--The Mortgage Loan Sellers",
"SUMMARY OF PROSPECTUS SUPPLEMENT--THE MORTGAGE LOANS", "RISK FACTORS--The
Mortgage Loans", "DESCRIPTION OF THE MORTGAGE POOL--General", "--Mortgage Loan
History", "--Certain Terms and Conditions of the Mortgage Loans", "--Assessments
of Property Condition", "--Co-Lender Loans", "--Additional Mortgage Loan
Information", "--Twenty Largest Mortgage Loans", "--The Mortgage Loan Sellers",
"--The Sponsors" and "--Representations and Warranties; Repurchases and
Substitutions". The "Specified Portions" of the Memorandum, the Class A-4M
Memorandum and the Class A-MM Memorandum shall consist of the Specified Portions
of the Prospectus Supplement, the first and second full paragraphs on page "v"
of the Memorandum, the Class A-4M Memorandum and the Class A-MM Memorandum.
(e) The resolutions of the requisite committee of the Seller's
special loan committee authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and an original or copy of a certificate of good standing of the Seller
issued by the Comptroller of the Currency not earlier than sixty (60) days prior
to the Closing Date;
(f) A written opinion of counsel for the Seller (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 Underwriters, the
Initial Purchaser and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchaser, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon a breach of the representations made by the Seller in Section
3(a)(ix) hereof, (ii) arise out of or are based upon a breach or violation of
the representations made by the Seller in Section 3(a)(x) hereof, (iii) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in (A) the Prospectus Supplement, the Preliminary
Memorandum, the Class A-4M Memorandum, the Class A-MM Memorandum, the
Memorandum, the Diskette or in any revision or amendment of or supplement to any
of the foregoing, (B) any Time of Sale Information or any Issuer Information
contained in any Free Writing Prospectus prepared by or on behalf of the
Underwriters (an "Underwriter Free Writing Prospectus") or contained in any Free
Writing Prospectus which is required to be filed in accordance with the terms of
the Underwriting Agreement, (C) any items similar to Free Writing Prospectuses
forwarded by the Seller to the Initial Purchaser, or in any revision or
amendment of or supplement to any of the foregoing or (D) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B), (C) and (D) above
being defined as the "Disclosure Material"), or (iv) arise out of or are based
upon the omission or alleged omission to state therein (in the case of Free
Writing Prospectuses, when read in conjunction with the other Time of Sale
Information, in the case of any items similar to Free Writing Prospectuses, when
read in conjunction with the Memorandum, the Class A-4M Memorandum and the Class
A-MM Memorandum) and in the case of any summaries, reports, documents, written
or computer materials, or other information contemplated in clause (D) above,
when read in conjunction with the Memorandum, the Class A-4M Memorandum and the
Class A-MM Memorandum and, in the case of any Free Writing Prospectus, when read
in conjunction with the other Time of Sale Information, a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; but, with
respect to any Disclosure Material described in clauses (A), (B) and (C) of the
definition thereof, only if and to the extent that (I) any such untrue statement
or alleged untrue statement or omission or alleged omission occurring in, or
with respect to, such Disclosure Material, arises out of or is based upon an
untrue statement or omission with respect to the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties contained in the Data File
(it being herein acknowledged that the Data File was and will be used to prepare
the Preliminary Prospectus Supplement and the Prospectus Supplement, including
without limitation Annex A thereto, any other Time of Sale Information, the
Preliminary Memorandum, the Class A-4M Memorandum, the Class A-MM Memorandum,
the Memorandum and the Diskette with respect to the Registered Certificates and
any items similar to Free Writing Prospectuses forwarded to prospective
investors in the Non-Registered Certificates and any Free Writing Prospectus),
(II) any such untrue statement or alleged untrue statement or omission or
alleged omission of a material fact occurring in, or with respect to, such
Disclosure Material, is with respect to, or arises out of or is based upon an
untrue statement or omission of a material fact with respect to, the information
regarding the Mortgage Loans, the related Mortgagors, the related Mortgaged
Properties and/or the Seller set forth in the Specified Portions of the
Preliminary Prospectus Supplement, the Prospectus Supplement, the Preliminary
Memorandum, the Class A-4M Memorandum, the Class A-MM Memorandum or the
Memorandum, (III) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 hereof or
(IV) any such untrue statement or alleged untrue statement or omission or
alleged omission occurring in, or with respect to, such Disclosure Material,
arises out of or is based upon any other written information concerning the
characteristics of the Mortgage Loans, the related Mortgagors or the related
Mortgaged Properties furnished to the Purchaser, the Underwriters or the Initial
Purchaser by the Seller; provided, that the indemnification provided by this
Section 7 shall not apply to the extent that such untrue statement or omission
of a material fact was made as a result of an error in the manipulation of, or
in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties set forth in the Data File or Annex A to the Preliminary
Prospectus Supplement or the Prospectus Supplement to the extent such
information was not materially incorrect in the Data File or such Annex A, as
applicable, including without limitation the aggregation of such information
with comparable information relating to the Other Mortgage Loans.
Notwithstanding the foregoing, the indemnification provided in this Section 7(a)
shall not inure to the benefit of any Underwriter or Initial Purchaser (or to
the benefit of any person controlling such Underwriter or Initial Purchaser)
from whom the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if (x) the subject
untrue statement or omission or alleged untrue statement or omission made in any
Disclosure Material (exclusive of the Prospectus or any corrected or amended
Prospectus or the Memorandum, the Class A-4M Memorandum, the Class A-MM
Memorandum or any corrected or amended Memorandum) is eliminated or remedied in
the Prospectus or the Memorandum, the Class A-4M Memorandum or the Class A-MM
Memorandum or, with respect to any Time of Sale Information only, by the
delivery of a Corrected Free Writing Prospectus prior to the Time of Sale (in
each case, as corrected or amended, if applicable), as applicable, and (y) a
copy of the Prospectus, Memorandum, Class A-4M Memorandum, Class A-MM Memorandum
or Corrected Free Writing Prospectus (in each case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the Time of Sale of such Certificates, and (z) in the case of a corrected or
amended Prospectus, Memorandum, Class A-4M Memorandum, Class A-MM Memorandum or
Corrected Free Writing Prospectus, such Underwriter or Initial Purchaser
received electronically or in writing notice of such untrue statement or
omission and updated information concerning the untrue statement or omission at
least one Business Day prior to the Time of Sale. The Seller shall, subject to
clause (c) below, reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-131262 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus, dated October
19, 2006, as supplemented by the prospectus supplement, dated June 22, 2007 as
supplemented by the Supplement (to accompany prospectus supplement dated June
22, 2007 to prospectus dated October 19, 2007), dated June 27, 2007 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the free writing
prospectus, dated June 10, 2007, consisting of the preliminary free writing
prospectus, including the base prospectus, dated October 19, 2006 attached
thereto, as supplemented and corrected by that certain free writing prospectus,
dated June 20, 2007; "Preliminary Memorandum" shall mean the preliminary private
placement memorandum, dated June 20, 2007, relating to the Non-Registered
Certificates, including all annexes thereto; "Memorandum" shall mean the private
placement memorandum, dated June 22, 2007, relating to the Non-Registered
Certificates, including all exhibits thereto; "Class A-4M Memorandum" shall mean
the private placement memorandum, dated June 22, 2007 and/or the preliminary
private placement memorandum, dated June 20, 2007, as applicable, including all
annexes thereto, relating to the Class A-4M Certificates and the Class A-4MS
Certificates; "Class A-MM Memorandum" shall mean the private placement
memorandum, dated June 22, 2007 and/or the preliminary private placement
memorandum, dated June 20, 2007, as applicable, including all annexes thereto,
relating to the Class A-MM Certificates and the Class A-MMS Certificates;
"Registered Certificates" shall mean the Class A-1, Class A-2, Class A-PB, Class
A-3, Class A-1A, Class IO, Class A-J, Class B, Class C, Class D, Class E and
Class F Certificates; "Non-Registered Certificates" shall mean the Certificates
other than the Registered Certificates; "Diskette" shall mean the diskette or
compact disc attached to each of the Preliminary Prospectus Supplement, the
Prospectus, the Class A-4M Memorandum, the Class A-MM Memorandum and the
Memorandum; and "Data File" shall mean the compilation of information and data
regarding the Mortgage Loans covered by the Agreed Upon Procedures Letters,
dated June 28, 2007 and rendered by KPMG LLP (a "hard copy" of which Data File
was initialed on behalf of the Seller and the Purchaser). "Free Writing
Prospectus" shall mean a "free writing prospectus" as such term is defined
pursuant to Rule 405 under the 1933 Act. "Corrected Free Writing Prospectus"
shall mean a Free Writing Prospectus that corrects any previous Free Writing
Prospectus prepared by or on behalf of any Underwriter and delivered to any
purchaser that contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances in which they were made, not misleading.
"Time of Sale" shall mean the time at which sales to investors of the
Certificates were first made as determined in accordance with Rule 159 of the
1933 Act. "Time of Sale Information" shall mean each free writing prospectus
listed on Exhibit B hereto. "Issuer Information" shall have the meaning given to
such term in Rule 433(h) under the 1933 Act (as discussed by the Securities and
Exchange Commission (the "Commission") in footnote 271 of the Commission's
Securities Offering Reform Release No. 33--8591). "Regulation AB" shall have the
meaning as defined in Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123 of the 1933 Act, 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, 1,531 (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.
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than forty-five (45) days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying party assumes
the defense of any proceeding, it shall be entitled to settle such proceeding
with the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates, less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchaser's obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchaser, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchaser and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchaser and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Wachovia Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus, Term Sheet, Preliminary Prospectus
Supplement, each other Free Writing Prospectus, Preliminary Memorandum, Class
A-4M Memorandum, Class A-MM Memorandum and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Commission for registration of the Certificates so registered; (v) the fees
charged by the Rating Agencies to rate the Certificates so rated; (vi) the fees
and disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller with respect to numerical information in respect of the
Mortgage Loans and the Certificates included in any Free Writing Prospectus, the
Prospectus Supplement, the Preliminary Memorandum, the Class A-4M Memorandum,
the Class A-MM Memorandum and the Memorandum, including in respect of the cost
of obtaining any "comfort letters" with respect to such items; (vii) the
reasonable out-of-pocket costs and expenses in connection with the qualification
or exemption of the Certificates under state securities or "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Underwriters or Initial Purchaser; provided,
however, Seller shall pay (or shall reimburse the Purchaser to the extent that
the Purchaser has paid) the expense of recording any assignment of Mortgage or
assignment of Assignment of Leases as contemplated by Section 2 hereof with
respect to the Seller's Mortgage Loans. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 9. Grant of a Security Interest. 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 hereof 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. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the Preliminary
Prospectus Supplement, the final form of the Memorandum, the final form of the
Class A-4M Memorandum, the final form of the Class A-MM Memorandum and the final
form of the Prospectus Supplement) promptly upon any such document becoming
available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof 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 transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. 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 13. 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 which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. 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 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. 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 which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which 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 17. 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 18. 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 and the Initial Purchaser (each as intended third
party beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. 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 19. 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, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG 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.
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
------
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Charles L. Culbreth
-------------------------------------
Name: Charles L. Culbreth
Title: Managing Director
Address for Notices:
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0166
Telecopier No.: (704) 383-1942
Telephone No.: (704) 374-6161
PURCHASER
---------
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ H. Royer Culp, Jr.
-------------------------------------
Name: H. Royer Culp, Jr.
Title: Vice President
Address for Notices:
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0166
Telecopier No.: (704) 383-1942
Telephone No.: (704) 374-6161
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule I, the phrases "to the knowledge of
the Seller" or "to the Seller's knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. Also, for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. Upon consummation of the transactions contemplated by this
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan
(other than those rights to servicing and related compensation as
reflected in the Mortgage Loan Schedule) free and clear of any pledge,
lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is a legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an Assignment of Leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, 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, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee: (or in the case of a 2007-C31 Serviced
Mortgage Loan, the 2007-C31 Trustee) constitutes the legal, valid and
binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law). Each Mortgage and Assignment of
Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a) the lien
of current real property taxes, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). 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 of UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan, there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
comprehensive general liability insurance against claims for personal and
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property in an amount customarily required by prudent
commercial mortgage lenders, but not less than $1 million. An
architectural or engineering consultant has performed an analysis of each
of the Mortgaged Properties located in seismic zone 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475-year lookback with a 10% probability of exceedance
in a 50-year period. If the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained by an insurer
rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or Fitch. If the Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina, such
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged
Property. Such insurance is required by the Mortgage or related Mortgage
Loan documents and was in full force and effect with respect to each
related Mortgaged Property at origination and to the knowledge of the
Seller, all insurance coverage required under each Mortgage or related
Mortgage Loan documents is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
related Mortgage Loan documents, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property with mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan and accrued interest thereon. To
the Seller's actual knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required. The insurance policies contain a standard mortgagee clause
naming the originator of the related Mortgage Loan, its successors and
assigns as loss payees in the case of property insurance policies and
additional insureds in the case of liability insurance policies and
provide that they are not terminable and may not be reduced without 30
days prior written notice to the mortgagee (or, with respect to
non-payment of premiums, 10 days prior written notice to the mortgagee) or
such lesser period as prescribed by applicable law. Each Mortgage or
related Mortgage Loan documents require that the Mortgagor maintain
insurance as described above or permits the mortgagee to require insurance
as described above, and permits the mortgagee to purchase such insurance
at the Mortgagor's expense if the Mortgagor fails to do so. Additionally,
for any Mortgage Loan having an unpaid principal balance equal to or
greater than $15,000,000, the insurer has a claims paying ability rating
from S&P or Fitch of not less than "A-" (or the equivalent) or A.M. Best
of not less than "A-:V" (or the equivalent).
14. (A) Other than payments due but not yet thirty (30) days or more
delinquent, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note, and to the Seller's actual knowledge no event (other than payments
due but not yet delinquent) which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, provided,
however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration
that specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any paragraph of this
Schedule I or in any paragraph of Schedule II, and (B) the Seller has not
waived any material default, breach, violation or event of acceleration
under such Mortgage or Mortgage Note, except for a written waiver
contained in the related Mortgage File being delivered to the Purchaser,
and no such waiver has been granted since the later of: (a) the date upon
which the due diligence file related to the applicable Mortgage Loan was
delivered to Cadim TACH inc., or an affiliate, or (b) the date of the
origination of such Mortgage Loan, and pursuant to the terms of the
related Mortgage or the related Mortgage Note and other documents in the
related Mortgage File no Person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage or related Mortgage Loan documents do not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation except as expressly described in such
Mortgage or related Mortgage Loan documents.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) 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 the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan and if operated in accordance with Treasury Regulations
Section 1.856-6, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow of 100% or more of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
Mortgagor has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the Mortgagor has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier or insurance broker issuing such
policy prior to the issuance of such policy. The Mortgage Loan documents
require the Mortgagor to comply with all applicable environmental laws and
each Mortgagor has agreed to indemnify the mortgagee for any losses
resulting from any material, adverse environmental condition or failure of
the Mortgagor to abide by such laws or has provided environmental
insurance.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof (which, in the case of a 2007-C31 Serviced
Mortgage Loan, are the Trustee and the 2007-C31 Trustee) adequate for the
practical realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar law affecting the right of creditors and the
application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except in respect to each Co-Lender
Loan) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. The Mortgage or related Mortgage Loan documents contain a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the prior written
consent of the holder of the Mortgage, either the related Mortgaged
Property, or any equity interest in the related Mortgagor, is directly or
indirectly transferred, sold or pledged, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest (as such term is defined in the related Mortgage Loan documents)
in the Mortgagor, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to Crossed
Loans or multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan (such as
pledges of ownership interests that do not result in a change of control).
The Mortgage or related Mortgage Loan documents require the Mortgagor to
pay all reasonable fees and expenses associated with securing the consents
or approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to American Capital Strategies, Ltd., or an
affiliate.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage. The terms of the related Mortgage or related Mortgage Loan
documents do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor of not less than 125% of the related
allocated loan amount of such Mortgaged Property, (b) upon payment in full
of such Mortgage Loan, (c) upon defeasance permitted under the terms of
such Mortgage Loan by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities", as defined in the Investment Company Act of 1940, as amended,
sufficient to pay the Mortgage Loan in accordance with its terms, (d) upon
substitution of a replacement property with respect to such Mortgage Loan
as set forth on Schedule 26, (e) where release is conditional upon the
satisfaction of certain objective underwriting and legal requirements, the
satisfaction of which would be acceptable to a reasonably prudent
commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property
or (f) releases of unimproved out-parcels or other portions of the
Mortgaged Property which will not have a material adverse effect on the
underwritten value of the security for the Mortgage Loan and which were
not afforded any value in the appraisal obtained at the origination of the
Mortgage Loan.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws constitutes a legal
non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts customarily required by
prudent commercial mortgage lenders, or such non-conformity does not
materially and adversely affect the use, operation or value of the
Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or, if so located, the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect in an amount no less than the lesser of (i) the original
principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent (or, in the
case of a 2007-C31 Serviced Mortgage Loan, in the possession of the
2007-C31 Master Servicer) and there are no deficiencies in connection
therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the Mortgagor to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor who is a natural person
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
42. With respect to such Mortgage Loan, any Prepayment Premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder (which, in the case of a
2007-C31 Serviced Mortgage Loan, are the Trustee and the 2007-C31 Trustee
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys' fees),
and provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which the
lender can require) (a) an accountant's certification as to the adequacy
of the defeasance collateral to make payments under the related Mortgage
Loan for the remainder of its term, (b) an Opinion of Counsel that the
defeasance complies with all applicable REMIC Provisions, and (c)
assurances from the Rating Agencies that the defeasance will not result in
the withdrawal, downgrade or qualification of the ratings assigned to the
Certificates. Notwithstanding the foregoing, some of the Mortgage Loan
documents may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the Mortgage Loan
documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. Each Mortgage or related Mortgage Loan documents require the Mortgagor
upon request to provide the owner or holder of the Mortgage with quarterly
(except for some Mortgage Loans with an original principal balance less
than $5,000,000) and annual operating statements (or a balance sheet and
statement of income and expenses), rent rolls (if there is more than one
tenant) and related information, which annual financial statements for all
Mortgage Loans with an outstanding principal balance greater than
$20,000,000 are required to be audited by an independent certified public
accountant.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) 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 or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to (i) or (ii), to the extent required by
such policy or to the extent the failure to make any such disclosure
or deliver any such report would materially and adversely affect the
Mortgagor's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect;
(d) such insurance has a term of at least five years beyond the maturity
date (or the Anticipated Repayment Date for ARD Loans) of such
Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment for lead
based paint ("LBP") (in the case of a multifamily property built
prior to 1978), asbestos containing materials ("ACM") (in the case
of any property built prior to 1985) and radon gas ("RG") (in the
case of a multifamily property) at such Mortgaged Property and (ii)
if such report disclosed the existence of a material and adverse
LBP, ACM or RG environmental condition or circumstance affecting
such Mortgaged Property, then, except as otherwise described on
Schedule II, (A) the related Mortgagor was required to remediate
such condition or circumstance prior to the closing of the subject
Mortgage Loan, or (B) the related Mortgagor was required to provide
additional security reasonably estimated to be adequate to cure such
condition or circumstance, or (C) such report did not recommend any
action requiring the expenditure of any material funds and the
related Mortgage Loan documents require the related Mortgagor to
establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan;
and
(f) rights under such policy inure to the benefit of the Purchaser.
53. Each Mortgage Loan is secured by the fee interest in the related Mortgaged
Property, except with respect to loan numbers 1.06, 2.16, 4, 5, 23, 78 and
128 listed on the Mortgage Loan Schedule, which Mortgage Loans are secured
by the interest of the related Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications, and any
related estoppels or agreements from the ground lessor and, in the event
the Mortgagor's interest is a ground subleasehold, shall also include not
only such ground sublease but also the related ground lease) (or, with
respect to loan numbers 9, 36, 37, 39, 55, 97 and 106, which Mortgage
Loans are secured by fee interests with respect to certain of the related
Mortgaged Properties and ground leases with respect to other of the
related Mortgaged Properties), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) 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 or, if consent
of the lessor thereunder is required, it has been obtained prior to
the Closing Date, and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns, in a
manner that would materially adversely affect the security provided
by the related Mortgage; and there has been no material change in
the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related
Mortgage File;
(b) 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 Title Exceptions;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
mortgagee and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Cut-Off Date) and, in
the event that it is so assigned, is further assignable by the
mortgagee and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor (or, if such consent
is required, it has been obtained prior to the Cut-Off Date);
(d) As of the Closing Date such Ground Lease is in full force and
effect, and the Seller has not received notice (nor is the Seller
otherwise aware) that any default has occurred under such Ground
Lease as of the Cut-Off Date;
(e) Seller or its agent has provided the lessor under the Ground Lease
with notice of its lien, and such Ground Lease requires the lessor
to give notice of any default by the lessee to the mortgagee, and
such Ground Lease, further provides that no notice of termination
given under such Ground Lease is effective against such mortgagee
unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity to cure any default under such Ground Lease (including
where necessary, sufficient time to gain possession of the interest
of the lessee under the Ground Lease), which is curable after the
receipt of written notice of any such default, before the lessor
thereunder may terminate such Ground Lease, and all of the rights of
the Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised by or
on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or more optional
renewal terms, which, under all circumstances, may be exercised, and
will be enforceable, by the Seller, its successors or assigns) which
extends not less than 10 years beyond the amortization term of the
related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
the mortgagee under such Mortgage Loan upon termination of such
Ground Lease for any reason, including rejection of such Ground
Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award will
be applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee under such
Mortgage Loan or a trustee appointed 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 such Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground
Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 8
- ------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool Each Mortgage Loan is cross-collateralized and
3 DDR Southeast Pool cross-defaulted with its related Companion Loan(s),
2 ING Hospitality Pool which is not included in the Mortgage Pool. In
addition, the related Companion Loan(s) is secured
by the same Mortgaged Property and the same Mortgage
Loan securing each Mortgage Loan.
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool There is no Mortgage recorded with respect to the
Non-Mortgaged Properties.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 12
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool There is no title insurance with respect to the
Non-Mortgaged Properties.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 13
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool Earthquake insurance is required at $125,000,000.
- ----------------------------------------------------------------------------------------------------------------
130 Walgreens - Ozark, MO The related Mortgaged Property is self-insured.
- ----------------------------------------------------------------------------------------------------------------
100 Bunge North America The insurance policy does not cover losses due to
64 Xsport Fitness - Downers Grove, IL terrorism.
- ----------------------------------------------------------------------------------------------------------------
51 Mercury Computer At least one insurance policy covering the Mortgaged
Property is not rated above "BBB-" by S&P or "A-:V" by
A.M. Best.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 16
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
35 Siena Office Park The Mortgage Rate will vary in accordance with the
schedule attached to the Mortgage Note.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 18
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool The security with respect to the Non-Mortgaged
Properties is not a Mortgage.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 19
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
71 Michael's Warehouse & Distribution Facility The indemnity excludes losses from diminution in the
value of the property or any future reduction in the
sales price of the property due to environmental
contamination.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 22
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
80 Deerwood Crossing Apartments Wachovia Development Corporation owns an 80% indirect
96 Dutch Village Apartments preferred equity interest in the sole member of the
Borrower.
- ----------------------------------------------------------------------------------------------------------------
25 Mountain Shadow Apartments Wachovia Development Corporation owns a 90% preferred
31 Summit Trails Apartments equity interest in the Borrower.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 23
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
80 Deerwood Crossing Apartments Wachovia Development Corporation is permitted to
96 Dutch Village Apartments transfer its indirect preferred equity interest in the
sole member of the Borrower without accelerating the
loan.
- ----------------------------------------------------------------------------------------------------------------
138 Ocean Rose Inn Transfers to the REIT, the investment entity controlled
33 Sheraton West - Richmond, VA by the sponsor or the principals of the Borrower or an
institutional investor are permitted and do not cause
an acceleration of the Mortgage Loan.
- ----------------------------------------------------------------------------------------------------------------
124 701 Interstate 20 East The related Mortgage Loan documents permit the transfer
10 Centerside II of certain direct or indirect interests in the
77 Colony Grove Apartments Mortgagor, subject to certain conditions set forth in
36 Columbus Park Crossing Shopping the related Mortgage Loan documents and do not cause an
Center acceleration of the Mortgage Loan.
30 Environs Residential Community
15 La Jolla Centre I
18 La Jolla Centre II
55 Lazy Days Marina
71 Michael's Warehouse & Distribution
Facility
128 Pay Low - Gary, IN
45 The Centre Apartments
133 Tractor Supply - Rutland, VT
134 Tractor Supply - Watertown, WI
111 Village Pavilion
75 Vista Montana
130 Walgreens - Ozark, MO
129 Wiseway
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 26
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1.10 1616 Fort Myer Drive Certain Mortgaged Properties may be released with
1.15 11111 Sunset Hills Road payments less than 125% of the related allocated loan
1.11 American Center amount.
1.16 Army and Navy Club Building
7 Ashford Hospitality Pool 4
1 Beacon D.C. & Seattle Pool
1.05 Booz Allen Complex
1.08 City Center Bellevue
36 Columbus Park Crossing Shopping
Center
7.02 Courtyard - Orlando, FL
7.05 Courtyard by Marriott - Edison, NJ
3 DDR Southeast Pool
6 DDR-TRT Pool
1.12 Eastgate Office Park
30 Environs Residential Community
2 ING Hospitality Pool
1.06 Key Center
15 La Jolla Centre I
1.13 Liberty Place
1.14 Lincoln Executive Center Buildings I,
II, III, A&B
1.01 Market Square
1.04 One, Two & Three Lafayette Centre
1.09 Plaza Center and US Bank Tower
1.17 Plaza East
1.02 Polk & Taylor Buildings
7.03 Residence Inn - Atlanta, GA
7.01 Spring Hill Suites - Orlando, FL
1.07 Sunset North
75 Vista Montana
1.03 Wells Fargo Center
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 27
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
30 Environs Residential Community Encroachment violation is not covered by insurance, but
the note and guaranty have non-recourse carve-outs for
any related losses.
- ----------------------------------------------------------------------------------------------------------------
59 Porto Bella The Borrower established a separate account for the
rehabilitation budget, but it is not a
Mortgagee-controlled account. The Mortgagee has a
pledge of this and all other Borrower accounts, but not
actual control.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 29
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
30 Environs Residential Community No non-consolidation opinion was given.
42 Majestic Square
- ----------------------------------------------------------------------------------------------------------------
91 Imperial Towers Apartments The Borrower is not an SPE.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 31
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool Western Associates v. Market Square Associates. The
General Partner of the owner of one of the Mortgage
Properties is a defendant in a claim alleging, among
other things, fraud, breach of contract, breach of
fiduciary duty. The plaintiff seeks injunctive relief
and an unknown amount of monetary damages.
A Notice of Lis Pendens has been filed with respect to
one of the Mortgaged Properties for which a pledge of
the ownership interest therein provides part of the
security for the Mortgage Loan in connection with a
lawsuit filed by one of the limited partners against
the general partner and its affiliates and other
current and former limited partners of the owner of
the Mortgaged Property.
- ----------------------------------------------------------------------------------------------------------------
Exception to Representation 36
- ------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
111 Village Pavilion Required reserves were waived by Mortgagee.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 40
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
77 Colony Grove Apartments Mortgage Loan is recourse to the Borrower and Guarantor
for losses arising out of adverse possession claims
against Rosemarie Fernandez and her heirs, successors
and assigns.
- ----------------------------------------------------------------------------------------------------------------
71 Michael's Warehouse & Distribution Indemnity expressly excludes losses arising from
Facility environmental contamination.
- ----------------------------------------------------------------------------------------------------------------
31 Summit Trails Apartments Mortgage Loan is recourse to the Borrower for windstorm
losses resulting from a failure to have L&O coverage,
but only to the extent the Mortgaged Property is
legally non-conforming with respect to parking.
- ----------------------------------------------------------------------------------------------------------------
13 60 Madison Avenue The guarantor for the related Mortgage Loan is not a
124 701 Interstate 20 East natural person.
7 Ashford Hospitality Pool 4
62 Barrington Terrace
94 Bath Shopping Center
1 Beacon D.C. & Seattle Pool
100 Bunge North America
10 Centerside II
66 Chartwell Court
11 Citadel Mall
84 Coddle Creek Shopping Center
36 Columbus Park Crossing Shopping
Center
85 Commons V Medical Office
26 Courtyard by Marriott - Philadelphia, PA
3 DDR Southeast Pool
6 DDR-TRT Pool
96 Dutch Village Apartments
34 Franklin Square III
78 Glenwood Plaza
2 ING Hospitality Pool
15 La Jolla Centre I
18 La Jolla Centre II
21 Little Rock Pool
42 Majestic Square
41 Marietta Trade Center
20 Marriott - Mobile, AL
79 Mayfaire Towne Center
71 Michael's Warehouse & Distribution
Facility
51 Mercury Computer
72 Parmer-McNeil Plaza Shopping Center
57 Peachtree Medical Office Pool
23 Portofino Inn & Suites
115 Rockbridge Place
60 Shoppes at Woodhill
35 Siena Office Park
122 SilverLeaf Suites - Eagle, CO
70 The Arbors at Port Warwick
45 The Centre Apartments
109 The Timmons Place Office Building
119 The Timmons Square Office Building
27 Town Center Apartments
133 Tractor Supply - Rutland, VT
134 Tractor Supply - Watertown, WI
111 Village Pavilion
130 Walgreens - Ozark, MO
32 Wellington Market Place
5 Westin Casuarina Resort & Spa -
Cayman Islands
90 Willimantic Plaza
64 Xsport Fitness - Downers Grove, IL
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool The Mortgage Loan is fully recourse to the Borrower.
74 Midtown Square
- ----------------------------------------------------------------------------------------------------------------
106 Shoppes at Indian Trail The Mortgage Loan is recourse to the Guarantor up to
$1,650,000 until certain lease and DSCR tests are met.
- ----------------------------------------------------------------------------------------------------------------
101 Shoppes at Pennington The Mortgage Loan is fully recourse to the Guarantor,
who has signed a payment guarantee.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 45
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
80 Deerwood Crossing Apartments Wachovia Development Corporation owns an 80% indirect
96 Dutch Village Apartments preferred equity interest in the sole member of the
Borrower. The sole member of the Borrower has capital
contribution obligations under its operating agreement.
- ----------------------------------------------------------------------------------------------------------------
25 Mountain Shadow Apartments Wachovia Development Corporation owns an 90% preferred
31 Summit Trails Apartments equity interest in the Borrower, and has capital
contribution obligations under its operating agreement.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 46
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool The Non-Mortgaged Properties are encumbered by existing
subordinate debt.
- ----------------------------------------------------------------------------------------------------------------
75 Vista Montana A subsequent buyer of the Mortgaged Property may obtain
subordinate financing secured by the Mortgaged Property
under certain circumstances.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 50
- -------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
38 Amber Place Requirement of delivery of audited financials waived by
30 Environs Residential Community lender.
25 Mountain Shadow Apartments
31 Summit Trails Apartments
- ----------------------------------------------------------------------------------------------------------------
14 3600 Wilshire Boulevard Financial statements are not required to be audited.
10 Centerside II
21.01 Chenal Lakes Apartments
22 Jamison Valley Holdings Pool
15 La Jolla Centre I
18 La Jolla Centre II
51 Mercury Computer
74 Midtown Square
9 Rockvale Square
19 Roosevelt Square
17 Stadium Crossings
- ----------------------------------------------------------------------------------------------------------------
100 Bunge North America Financial statements are only required to be delivered
annually.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 53(c)
- ----------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool The Ground Lease is assignable without consent in
connection with a foreclosure or assignment or deed in
lieu thereof. Further assignments of the Ground Lease
must comply with the terms of the Ground Lease.
- ----------------------------------------------------------------------------------------------------------------
55 Lazy Days Marina The Ground Lease is assignable once without consent,
but subsequent assignments require consent of the
Ground Lessor.
- ----------------------------------------------------------------------------------------------------------------
Exceptions to Representation 53(i)
- ----------------------------------
- ----------------------------------------------------------------------------------------------------------------
Loans Description of Exception
- ----------------------------------------------------------------------------------------------------------------
1 Beacon D.C. & Seattle Pool If the Ground Lease terminates as a result of a
casualty, the Ground Lessor is entitled, subject to
certain conditions, to a portion of insurance proceeds.
- ----------------------------------------------------------------------------------------------------------------
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan
Loan Group
Number Number Property Name Address
- ------------------------------------------------------------------------------------------------------------------------------------
1 1 Beacon D.C. & Seattle Pool(1) Various
1.01 Market Square 701, 801 Pennsylvania Avenue NW
1.02 Polk & Taylor Buildings 2521 S Clark Street & 2530 Crystal Drive
1.03 Wells Fargo Center 999 Third Avenue
1.04 One, Two & Three Lafayette Centre 1120 20th Street NW; 1155 21st Street NW; 1133 21st
Street NW
1.05 Booz Allen Complex 8251 Greensboro Drive; 8281 Greensboro Drive; 8283
Greensboro Drive
1.06 Key Center 601 108th Avenue NE
1.07 Sunset North 3060-3180, 139th Avenue SE
1.08 City Center Bellevue 500 108th Avenue NE
1.09 Plaza Center and US Bank Tower 10800 and 10900 NE 8th Street
1.10 1616 Fort Myer Drive 1616 Fort Myer Drive
1.11 American Center 8300 & 8330 Boone Boulevard
1.12 Eastgate Office Park 15325 SE 30th Place
1.13 Liberty Place 325 7th Street NW
1.14 Lincoln Executive Center Buildings I, II, III, A&B 3380 146th Place Southeast, 14332 Southeast Eastgate
Way, 3245 146th Place Southeast; 3290 and 3310 146th
Place Southeast
1.15 11111 Sunset Hills Road 11111 Sunset Hills Road
1.16 Army and Navy Club Building 1627 I Street NW
1.17 Plaza East 11100 NE 8th Street
1.18 Reston Town Center 11911 Freedom Drive
1.19 1300 North Seventeenth Street 1300 North 17th Street
1.20 Washington Mutual Tower 1201 Third Avenue
2 1 ING Hospitality Pool(1) Various
2.01 Residence Inn - La Jolla, CA 8901 Gilman Drive
2.02 Residence Inn Seattle East - Redmond , WA 7575 164th Avenue NE
2.03 Residence Inn - Long Beach, CA 4111 East Willow Street
2.04 Residence Inn - Costa Mesa, CA 881 West Baker Street
2.05 Residence Inn Pasadena - Arcadia, CA 321 East Huntington Drive
2.06 Residence Inn - Irvine, CA 10 Morgan Street
2.07 Homewood Suites - Herndon, VA 13460 Sunrise Valley Drive
2.08 Residence Inn Concord - Pleasant Hill, CA 700 Ellinwood Way
2.09 Residence Inn - San Ramon, CA 1071 Market Place
2.10 Homewood Suites - Linthicum, MD 1181 Winterson Road
2.11 Residence Inn - Saint Louis, MO 1100 McMorrow Avenue
2.12 Residence Inn - Bakersfield, CA 4241 Chester Lane
2.13 Residence Inn - Boulder, CO 3030 Center Green Drive
2.14 Residence Inn - Hapeville, GA 3401 International Boulevard
2.15 Residence Inn Chicago - Deerfield, IL 530 Lake Cook Road
2.16 Homewood Suites - Malvern, PA 12 East Swedesford Road
2.17 Residence Inn - Houston, TX 525 Bay Area Boulevard
2.18 Residence Inn - Santa Fe, NM 1698 Galisteo Street
2.19 Residence Inn - Placentia, CA 700 West Kimberly Avenue
2.20 Homewood Suites - Glen Allen, VA 4100 Innslake Drive
2.21 Residence Inn - Atlanta, GA (Buckhead) 2960 Piedmont Road NE
2.22 Homewood Suites - Beaverton, OR 15525 NW Gateway Court
2.23 Residence Inn - Cincinnati, OH 11689 Chester Road
2.24 Residence Inn - Lombard, IL 2001 South Highland Avenue
2.25 Residence Inn - Jacksonville, FL 8365 Dix Ellis Trail
2.26 Homewood Suites - Irving, TX 4300 Wingren Drive
2.27 Residence Inn Dallas - Irving, TX 950 Walnut Hill Lane
2.28 Homewood Suites - Clearwater, FL 2233 Ulmerton Road
2.29 Residence Inn - Boca Raton, FL 525 NW 77th Street
2.30 Residence Inn - Clearwater, FL 5050 Ulmerton Road
2.31 Residence Inn - Birmingham, AL 3 Greenhill Parkway
2.32 Residence Inn - Smyrna, GA 2771 Cumberland Boulevard
2.33 Homewood Suites - Addison, TX 4451 Beltline Road
2.34 Homewood Suites - Chesterfield, MO 840 Chesterfield Parkway
2.35 Residence Inn - Montgomery, AL 1200 Hilmar Court
2.36 Homewood Suites - Atlanta, GA (Buckhead) 3566 Piedmont Road
2.37 Residence Inn - Chesterfield, MO 15431 Conway Road
2.38 Residence Inn - Blue Ash, OH 11401 Reed Hartman Highway
2.39 Residence Inn - Berwyn, PA 600 West Swedesford Road
2.40 Residence Inn - Danvers, MA 51 Newbury Street
2.41 Homewood Suites - Midvale, UT 844 East Fort Union
2.42 Homewood Suites - Plano, TX 4705 Old Shepard Place
2.43 Homewood Suites - Atlanta, GA (Cumberland) 3200 Cobb Parkway
2.44 Residence Inn - Memphis, TN 6141 Old Poplar Pike
2.45 Residence Inn - Atlanta, GA (DeKalb) 1901 Savoy Drive
2.46 Homewood Suites - Norcross, GA 450 Technology Parkway
3 1 DDR Southeast Pool(1)(2) Various
3.01 Hilltop Plaza 3200-4200 Klose Way, 3401 Blume Drive
3.02 Largo Town Center 950 Largo Center Drive
3.03 Midway Plaza 5725 North University Drive
3.04 Riverstone Plaza 1351-1455 Riverstone Parkway
3.05 Highland Grove 10451 Indianapolis Boulevard
3.06 Riverdale Shops 935 Riverdale Street
3.07 Skyview Plaza 7801 South Orange Blossom Trail
3.08 Apple Blossom Corners 2190 South Pleasant Valley Road
3.09 Fayetteville Pavilion 2047 - 2071 Skibo Road
3.10 Creekwood Crossing 7327 52nd Place East
3.11 Flamingo Falls 2000 Flamingo Road
3.12 Harundale Plaza 7740 Ritchie Highway
3.13 Meadowmont Village Center 603 Meadowmont Village Drive
3.14 Springfield Commons Airport Highway South Holland Sylvania Road
3.15 Northlake Commons 3804-3980 Northlake Boulevard
3.16 Village Square at Golf 4707-4793 North Congress Avenue
3.17 Oviedo Park Crossing 1115 Vidina Place
3.18 Shoppes of Golden Acres 9840 Little Road
3.19 Bardmoor Shopping Center 10801 Starkey Road
3.20 Rosedale Shopping Center 9943 Gilead Road
3.21 Casselberry Commons 1455 South Semoran Boulevard
3.22 Shoppes at New Tampa 1950 Bruce B. Downs Boulevard
3.23 Crossroads Plaza Route 38
3.24 Plaza Del Paraiso 127th Avenue and 120th Street
3.25 North Pointe Plaza 15001 North Dale Mabry Highway
3.26 Melbourne Shopping Center 1301 - 1441 South Babcock Street
3.27 Market Square (DDR) 9559 Highway 5
3.28 Shoppes of Lithia 3245 Lithia-Pinecrest Road
3.29 West Oaks Towne Center 9557 West Colonial Drive
3.30 Sharon Greens 1595 Peachtree Parkway
3.31 Lakewood Ranch 1715-1795 Lakewood Ranch Boulevard
3.32 Cofer Crossing 4349-4357 Lawrenceville Highway
3.33 Clayton Corners 11721 U.S. Highway 17 West
3.34 Clearwater Crossing 7380 Spout Springs Road
3.35 Shops at Paradise Pointe 247 Miracle Strip Parkway
3.36 Killearn Center 3483 Thomasville Road
3.37 Conway Plaza 4400 Curry Ford Road
3.38 River Run Shopping Center 9981 Miramar Parkway
3.39 Aberdeen Square 4966 Le Chalet Boulevard
3.40 Derby Square 2165-2233 Stringtown Road
3.41 Chickasaw Trails Shopping Center 2160 Chickasaw Trail
3.42 Shoppes at Lake Dow 920 Highway 91 East
3.43 Shoppes of Ellenwood 2828-2844 East Atlanta Road
3.44 Shops at Oliver's Crossing 5034 Peters Creek Parkway
3.45 Southwood Village Shopping Center 3551 Blair Stone Road
3.46 Paraiso Plaza 3301 West 80th Street
3.47 Sheridan Sqaure 401 East Sheridan Street
3.48 Countryside Shopping Center 4025 Santa Barbara Boulevard
3.49 Shoppes of Citrus Hills 2699 North Forest Ridge Boulevard
3.50 Crystal Springs Shopping Center 6738-6784 West Gulf to Lake Highway
3.51 Sexton Commons 1416 North Main Street
3.52 Hairston Crossing 2071-2079 South Hairston Road
4 1 Two Herald Square 1328 Broadway
5 1 Westin Casuarina Resort & Spa - Cayman Islands 30620 Seven Mile Beach
6 1 DDR-TRT Pool Various
6.01 Centerton Square I-295 and Route NJ 38
6.02 Beaver Creek Commons 1045 Beaver Creek Commons Drive
6.03 Mount Nebo Pointe 228 Mount Nebo Road
7 1 Ashford Hospitality Pool 4 Various
7.01 Spring Hill Suites - Orlando, FL 8601 Vineland Avenue
7.02 Courtyard - Orlando, FL 8623 Vineland Avenue
7.03 Residence Inn - Atlanta, GA 2220 Lake Boulevard
7.04 Fairfield Inn - Orlando, FL 8615 Vineland Avenue
7.05 Courtyard by Marriott - Edison, NJ 3105 Woodbridge Avenue
8 1 17 Battery Place South 17 Battery Place South
9 1 Rockvale Square 35 South Willowdale Drive
10 1 Centerside II 3131 Camino del Rio North
11 1 Citadel Mall 2070 Sam Rittenburg Boulevard
12 1 Port Chester Shopping Center 421-575 Boston Post Road - U.S. Route 1
13 1 60 Madison Avenue 60 Madison Avenue
14 1 3600 Wilshire Boulevard 3600 Wilshire Boulevard
15 1 La Jolla Centre I 4660 La Jolla Village Drive
16 1 450-460 Park Avenue South 450-460 Park Avenue South
17 1 Stadium Crossings 2125 East Katella Avenue
18 1 La Jolla Centre II 9255 Towne Centre Drive
19 1 Roosevelt Square 4535 Roosevelt Boulevard
20 1 Marriott - Mobile, AL(4) 3101 Airport Boulevard
21 2 Little Rock Pool(5) Various
21.01 Chenal Lakes Apartments 13500 Chenal Parkway
21.02 Brightwaters Apartments 2420 Riverfront Drive
22 1 Jamison Valley Holdings Pool Various
22.01 Sherman Oaks Atrium 15315 Magnolia Boulevard
22.02 West Hills Plaza 20700 Ventura Boulevard
23 1 Portofino Inn & Suites - Anaheim, CA 1831 South Harbor Boulevard
24 1 Barrington Business Center 1 Commerce Drive
25 2 Mountain Shadow Apartments(6) 695 East Patriot Boulevard
26 1 Courtyard by Marriott - Philadelphia, PA 21 North Juniper Street
27 2 Town Center Apartments(7) 2727 Bens Branch Drive
28 2 The Gates at Citiplace Apartments 2500 Gates Circle
29 Reserved(8)
30 2 Environs Residential Rental Community 3323 West 96th Circle
31 2 Summit Trails Apartments(9) 1350 Grand Summit Drive
32 1 Wellington Market Place 13833-13897 Wellington Trace
33 1 Sheraton West - Richmond, VA(10) 6624 West Broad Street
34 1 Franklin Square III 3648-3740 East Franklin Boulevard
35 1 Siena Office Park(11)(12) 2850 West Horizon Ridge Parkway & 861 Coronado
Center Drive
36 1 Columbus Park Crossing Shopping Center 5550 Whittlesey Boulevard
37 1 Vestal Park 4700 Vestal Parkway
38 2 Amber Place 6080 Lakeview Road
39 1 Wyndham - Atlanta, GA 125 10th Street NE
40 1 141 5th Avenue 141 5th Avenue
41 1 Marietta Trade Center 200 Cobb Parkway
42 1 Majestic Square 211 King Street
43 1 138 Spring Street 138 Spring Street
44 1 72 Madison Avenue 72 Madison Avenue
45 2 The Centre Apartments 5200 Croyden Avenue
46 1 Pompano Plaza 1401-1405 South Federal Highway; 947-951 SE 15th
Street
47 1 Wildwood North Shopping Center 146 Wildwood Parkway
48 1 Federal Law Center 101 South Edgeworth Street
49 2 Estancia Apartments 1720 East D Street
50 1 Colonial Promenade Bear Lake 3010-3060 East Semoran Boulevard
51 1 Mercury Computer 199 & 201 Riverneck Road
52 2 Villa del Oso 4217 Louisiana Boulevard NE
53 1 Mount Pleasant Square 1440 Ben Sawyer Boulevard
54 1 65 West 36th Street 65 West 36th Street
55 1 Lazy Days Marina 6700 Holiday Road
56 1 Athens West 3190 Atlanta Highway
57 1 Peachtree Medical Office Pool Various
57.01 Yorktown Medical Center 101 Yorktown Drive
57.02 Shakerag Medical Center 4000 Shakerag Hill
58 1 BPRE Pool Various
58.01 11820 Pierce Street 11820 Pierce Street
58.02 8131 East Indian Bend Road 8131 East Indian Bend Road
58.03 8111 East Indian Bend Road 8111 East Indian Bend Road
58.04 8115 East Indian Bend Road 8115 East Indian Bend Road
58.05 7328 East Stetson Drive 7328 East Stetson Drive
59 2 Porto Bella(13) 10853 Firestone Boulevard
60 1 Shoppes at Woodhill 6090 Garners Ferry Road
61 2 Le Coeur du Monde Apartments 2035 Clermont Crossing Drive
62 1 Barrington Terrace 1425 South Congress Avenue
63 1 Sunset Commons 925 Seaside Road SW
64 1 XSport Fitness - Downers Grove, IL 3200 Finley Road
65 1 Topsham Crossing Center 129-131 Topsham Fair Mall Road
66 2 Chartwell Court Apartments 15100 Ella Boulevard
67 1 Cupertino Town Center 20380,20370,20410 Town Center Lane
68 1 One Front Street 251 East Front Street
69 2 Pine Winds Apartments 1301 Pine Winds Drive
70 2 The Arbors at Port Warwick 1100 William Styron Square South
71 1 Michael's Warehouse & Distribution Facility 9200 West Beaver Street
72 1 Parmer-McNeil Plaza Shopping Center 6201-6315 North Parmer Lane
73 1 159-181 Second Avenue 159-181 Second Avenue
74 1 Midtown Square(14) 112-116 10th Street
75 2 Vista Montana 8000 Montgomery Boulevard NE
76 1 1500 West Park Drive 1500 West Park Drive
77 2 Colony Grove Apartments 1145 West Baseline Road
78 1 Glenwood Plaza 3605 Glenwood Avenue
79 1 Mayfaire Towne Center 1060 International Drive
80 2 Deerwood Crossing Apartments(15) 1710 Franciscan Terrace
81 1 English Village 2812 Spring Avenue
84 1 Coddle Creek Shopping Center 358 George Liles Parkway
85 1 Commons V Medical Office 800 Goodlette Road
86 1 Plaza 57 7301 SW 57th Court
87 1 8300 East Raintree Drive 8300 East Raintree Drive
89 1 17000 Ventura Boulevard 17000 Ventura Boulevard
90 1 Willimantic Plaza 1601 West Main Street
91 2 Imperial Towers Apartments 3801 Conshohocken Avenue
92 1 Cardiff Plaza Shopping Center 6701 Black Horse Pike
93 1 Medical Office Building 50 Sewall Street
94 1 Bath Shopping Center 1-5 Chandler Road (US Route 1)
95 2 7400 Apartments 7400 Roosevelt Boulevard
96 2 Dutch Village Apartments(16) 1500 Zuider Zee Drive
97 1 Hampton Inn - Bennington, VT(17) 51 Hannaford Square
100 1 Bunge North America 6700 Snowden Road
101 1 Shoppes at Pennington(18) 21 Route 31 North
103 1 Galleria Shopping Center 100 Route 9 North
105 1 Barchester Pool(19) Various
105.01 Mansion House Center Ground Lease 300 North 4th Street
105.02 Pinewood Estates Apartments Ground Lease 1401 Pennsylvania Street, NE
105.03 Winrock Villas Condominiums Ground Lease 1601 Pennsylvania Street, NE
105.04 National City Bank Building Ground Lease 110 West Berry Street
105.05 Albuquerque Plaza Ground Lease 201 Third Streest N.W.
106 1 Shoppes at Indian Trail 14045 U.S. Highway 74
108 2 Village Square Apartments 100 Tonto Trail
109 1 The Timmons Place Office Building 3701 West Alabama Street
110 1 1331 Gemini Building 1331 Gemini Avenue
111 1 Village Pavilion 300 Village Green Circle
112 2 The Apartments at 1515 West Morse Avenue 1515 West Morse Avenue
113 2 5724-32 South Blackstone Avenue 5724-32 South Blackstone Avenue
114 2 Stanford Place II Apartments 37 Van Mark Way
115 1 Rockbridge Place 5723 Rockbridge Road
117 1 Holiday Inn Express - Heber City , UT 1268 South Main Street
119 1 The Timmons Square Office Building 3637 West Alabama Street
121 1 North Tucker Garage 310 North Tucker Boulevard
122 1 SilverLeaf Suites - Eagle, CO(20) 315 Chambers Avenue
123 1 Warehouse Terminal - Manitowac, WI 1946 South 23rd Street
124 1 701 Interstate 20 East 701 Interstate 20 East
125 1 Ridge Road Shopping Center 1107-1125A Ridge Road
126 1 OfficeMax - Eden Prairie, MN 8595 Columbine Road
127 2 4717 North Winthrop Apartments 4717 North Winthrop Avenue
128 1 Pay Low - Gary, IN 6010 West Ridge Road
129 1 Wiseway 999 West Old Ridge Road
130 1 Walgreens - Ozark, MO 1675 West South Street
131 1 Warehouse Terminal - Menominee, MI 5311 & 5611 13th Street
133 1 Tractor Supply - Rutland, VT 1177 US Route 7 South
134 1 Tractor Supply - Watertown, WI 1911 Market Way
135 1 Archives One - Malvern, PA 6 Lee Boulevard
138 1 Ocean Rose Inn - Narragansett, RI(21) 113 Ocean Road
139 1 Archives One - Greensboro, NC 2729 Patterson Street
142 1 Archives One - Essex Junction, VT 3 Bushey Lane
Mortgage
Loan Cut-Off Date Monthly P&I
Number City State Zip Code County Loan Balance ($) Payments ($)
- -----------------------------------------------------------------------------------------------------------------------------
1 Various Various Various Various 414,000,000.00 IO
1.01 Washington DC 20004 District Of Columbia
1.02 Arlington VA 22202 Arlington
1.03 Seattle WA 98104 King
1.04 Washington DC 20036 District of Columbia
1.05 Mc Lean VA 22102 Fairfax
1.06 Bellevue WA 98004 King
1.07 Bellevue WA 98005 King
1.08 Bellevue WA 98004 King
1.09 Bellevue WA 98004 King
1.10 Arlington VA 22209 Arlington
1.11 Vienna VA 22182 Fairfax
1.12 Bellevue WA 98007 King
1.13 Washington DC 20004 District Of Columbia
1.14 Bellevue WA 98007 King
1.15 Reston VA 20190 fairfax
1.16 Washington DC 20006 District Of Columbia
1.17 Bellevue WA 98004 King
1.18 Reston VA 20190 Fairfax
1.19 Arlington VA 22209 Arlington
1.20 Seattle WA 98101 King
2 Various Various Various Various 283,850,000.00 IO
2.01 La Jolla CA 92037 San Diego
2.02 Redmond WA 98052 King
2.03 Long Beach CA 90815 Los Angeles
2.04 Costa Mesa CA 92626 Orange
2.05 Arcadia CA 91006 Los Angeles
2.06 Irvine CA 92618 Orange
2.07 Herndon VA 20171 Fairfax
2.08 Pleasant Hill CA 94523 Contra Costa
2.09 San Ramon CA 94583 Contra Costa
2.10 Linthicum MD 21090 Anne Arundel
2.11 Saint Louis MO 63117 Saint Louis
2.12 Bakersfield CA 93309 Kern
2.13 Boulder CO 80301 Boulder
2.14 Hapeville GA 30354 Fulton
2.15 Deerfield IL 60015 Lake
2.16 Malvern PA 19355 Chester
2.17 Houston TX 77058 Harris
2.18 Santa Fe NM 87505 Santa Fe
2.19 Placentia CA 92870 Orange
2.20 Glen Allen VA 23060 Henrico
2.21 Atlanta GA 30305 Fulton
2.22 Beaverton OR 97006 Washington
2.23 Cincinnati OH 45246 Hamilton
2.24 Lombard IL 60148 Du Page
2.25 Jacksonville FL 32256 Duval
2.26 Irving TX 75093 Dallas
2.27 Irving TX 75038 Dallas
2.28 Clearwater FL 33762 Pinellas
2.29 Boca Raton FL 33487 Broward
2.30 Clearwater FL 33760 Pinellas
2.31 Birmingham AL 35242 Jefferson
2.32 Smyrna GA 30080 Cobb
2.33 Addison TX 75001 Dallas
2.34 Chesterfield MO 63017 Saint Louis
2.35 Montgomery AL 36117 Montgomery
2.36 Atlanta GA 30305 Fulton
2.37 Chesterfield MO 63017 Saint Louis
2.38 Blue Ash OH 45241 Hamilton
2.39 Berwyn PA 19312 Chester
2.40 Danvers MA 01923 Essex
2.41 Midvale UT 84047 Salt Lake
2.42 Plano TX 75093 Collin
2.43 Atlanta GA 30339 Cobb
2.44 Memphis TN 38119 Shelby
2.45 Atlanta GA 30341 DeKalb
2.46 Norcross GA 30092 Gwinnett
3 Various Various Various Various 221,250,000.00 IO
3.01 Richmond CA 94806 Contra Costa
3.02 Largo MD 20774 Prince George's
3.03 Tamarac FL 33321 Broward
3.04 Canton GA 30114 Cherokee
3.05 Highland IN 46322 Lake
3.06 West Springfield MA 01089 Hampden
3.07 Orlando FL 32809 Orange
3.08 Winchester VA 22601 Frederick
3.09 Fayetteville NC 28314 Cumberland
3.10 Bradenton FL 34203 Manatee
3.11 Pembroke Pines FL 33028 Broward
3.12 Glen Burnie MD 21061 Anne Arundel
3.13 Chapel Hill NC 27517 Orange County
3.14 Toledo OH 43528 Lucas
3.15 Palm Beach Gardens FL 33403 Palm Beach
3.16 Boynton Beach FL 33437 Palm Beach
3.17 Oviedo FL 32756 Seminole
3.18 New Port Richey FL 34654 Pasco
3.19 Largo FL 33777 Pinellas
3.20 Huntersville NC 28078 Mecklenburg
3.21 Casselberry FL 32707 Seminole
3.22 Wesley Chapel FL 33543 Pasco
3.23 Lumberton NJ 8048 Burlington
3.24 Miami FL 33186 Miami-Dade
3.25 Tampa FL 33618 Hillsborough
3.26 Melbourne FL 32901 Brevard
3.27 Douglasville GA 30135 Douglas
3.28 Valrico FL 33594 Hillsborough
3.29 Ocoee FL 34761 Orange
3.30 Cumming GA 30041 Forsyth County
3.31 Bradenton FL 34211 Manatee
3.32 Tucker GA 30084 DeKalb
3.33 Clayton NC 27520 Johnston
3.34 Flowery Branch GA 30542 Hall
3.35 Fort Walton Beach FL 32548 Okaloosa
3.36 Tallahassee FL 32309 Leon
3.37 Orlando FL 32812 Orange
3.38 Miramar FL 33025 Broward
3.39 Boynton Beach FL 33436 Palm Beach
3.40 Grove City OH 43123 Franklin
3.41 Orlando FL 32825 Orange
3.42 McDonough GA 30252 Henry
3.43 Ellenwood GA 30294 Henry
3.44 Winston Salem NC 27127 Forsyth
3.45 Tallahassee FL 32311 Leon
3.46 Hialeah FL 33018 Miami-Dade
3.47 Dania FL 33004 Broward
3.48 Naples FL 34104 Collier
3.49 Hernando FL 34442 Citrus
3.50 Crystal River FL 34429 Citrus
3.51 Fuquay Varina NC 27526 Wake
3.52 Decatur GA 30035 DeKalb
4 New York NY 10001 New York 200,000,000.00 IO
5 George Town Cayman Islands NA NA 140,000,000.00 873,875.74
6 Various Various Various Various 110,000,000.00 IO
6.01 Mount Laurel NJ 8054 Burlington
6.02 Apex NC 27502 Wake
6.03 Ohio Township PA 15237 Allegheny
7 Various Various Various Various 103,906,000.00 619,788.26
7.01 Orlando FL 32821 Orange
7.02 Orlando FL 32821 Orange
7.03 Atlanta GA 30319 DeKalb
7.04 Orlando FL 32821 Orange
7.05 Edison NJ 08837 Middlesex
8 New York NY 10004 New York 95,000,000.00 IO
9 Lancaster PA 17602 Lancaster 92,400,000.00 IO
10 San Diego CA 92108 San Diego 89,300,000.00 IO
11 Charleston SC 29407 Charleston 75,040,499.75 435,508.49
12 Port Chester NY 10573 Westchester 70,000,000.00 IO
13 New York NY 10010 New York 66,500,000.00 IO
14 Los Angeles CA 90010 Los Angeles 64,000,000.00 IO
15 San Diego CA 92122 San Diego 60,000,000.00 IO
16 New York NY 10016 New York 54,000,000.00 IO
17 Anaheim CA 92806 Orange 47,000,000.00 IO
18 San Diego CA 92121 San Diego 46,000,000.00 IO
19 Jacksonville FL 32210 Duval 46,000,000.00 IO
20 Mobile AL 36606 Mobile 44,000,000.00 260,698.58
21 Little Rock AR Various Pulaski 40,000,000.00 IO
21.01 Little Rock AR 72211 Pulaski
21.02 Little Rock AR 72202 Pulaski
22 Various CA Various Los Angeles 38,000,000.00 IO
22.01 Sherman Oaks CA 91403 Los Angeles
22.02 Woodland Hills CA 91364 Los Angeles
23 Anaheim CA 92802 Orange 36,750,000.00 IO
24 Barrington NJ 8007 Camden 36,100,000.00 IO
25 Reno NV 89511 Washoe 35,572,500.00 IO
26 Philadelphia PA 19107 Philadelphia 35,000,000.00 207,754.57
27 Kingwood TX 77339 Harris 34,000,000.00 IO
28 Baton Rouge LA 70809 East Baton Rouge 33,700,000.00 IO
29
30 Westminster CO 80031 Adams 31,000,000.00 IO
31 Reno NV 89523 Washoe 30,175,000.00 IO
32 Wellington FL 33414 Palm Beach 30,000,000.00 IO
33 Richmond VA 23230 Henrico 29,500,000.00 177,816.82
34 Gastonia NC 28054 Gaston 29,400,000.00 IO
35 Henderson NV 89052 Clark 28,620,000.00 IO
36 Columbus GA 31909 Muscogee 28,000,000.00 IO
37 Vestal NY 13850 Broome 27,000,000.00 156,366.08
38 Warner Robins GA 31088 Houston 26,000,000.00 IO
39 Atlanta GA 30309 Fulton 26,000,000.00 IO
40 New York NY 10010 New York 25,000,000.00 IO
41 Marietta GA 30060 Cobb 25,000,000.00 IO
42 Charleston SC 29401 Charleston 23,850,000.00 IO
43 New York NY 10012 New York 23,500,000.00 IO
44 New York NY 10016 New York 22,000,000.00 IO
45 Kalamazoo MI 49009 Kalamazoo 19,875,000.00 IO
46 Pompano Beach FL 33062 Broward 18,850,000.00 IO
47 Birmingham AL 35209 Jefferson 18,700,000.00 IO
48 Greensboro NC 27401 Guilford 17,800,000.00 IO
49 Ontario CA 91764 San Bernardino 17,650,000.00 IO
50 Apopka FL 32703 Seminole 16,720,000.00 96,704.16
51 Chelmsford MA 01824 Middlesex 16,200,000.00 IO
52 Albuquerque NM 87109 Bernalillo 16,180,000.00 IO
53 Mount Pleasant SC 29464 Charleston 15,500,000.00 IO
54 New York NY 10018 New York 14,750,000.00 IO
55 Buford GA 30518 Hall 14,000,000.00 89,227.37
56 Athens GA 30606 Clarke 13,760,000.00 IO
57 Various GA Various Fayette 13,530,000.00 76,991.72
57.01 Fayetteville GA 30214 Fayette
57.02 Peachtree City GA 30269 Fayette
58 Various Various Various Various 13,200,000.00 IO
58.01 Riverside CA 92505 Riverside
58.02 Scottsdale AZ 85250 Maricopa
58.03 Scottsdale AZ 85250 Maricopa
58.04 Scottsdale AZ 85250 Maricopa
58.05 Scottsdale AZ 85251 Maricopa
59 Norwalk CA 90650 Los Angeles 13,200,000.00 IO
60 Columbia SC 29209 Richland 13,100,000.00 IO
61 Saint Louis MO 63146 Saint Louis 13,056,000.00 IO
62 Boynton Beach FL 33426 Palm Beach 13,000,000.00 78,192.48
63 Ocean Isle Beach NC 28469 Brunswick 12,988,766.20 76,609.36
64 Downers Grove IL 60515 DuPage 12,936,479.47 92,962.20
65 Topsham ME 04086 Sagadahoc 12,720,000.00 74,068.94
66 Houston TX 77090 Harris 12,450,000.00 68,210.57
67 Cupertino CA 95014 Santa Clara 12,400,000.00 IO
68 Boise ID 83702 Ada 11,800,000.00 IO
69 Garner NC 27603 Wake 11,600,000.00 IO
70 Newport News VA 23606 Newport News City 11,278,294.07 66,159.24
71 Jacksonville FL 32220 Duval 11,200,000.00 64,650.41
72 Austin TX 78729 Travis 11,050,000.00 IO
73 San Mateo CA 94401 San Mateo 11,000,000.00 IO
74 Atlanta GA 30309 Fulton 11,000,000.00 IO
75 Albuquerque NM 87109 Bernalillo 10,820,000.00 IO
76 Westborough MA 01581 Worcester 10,800,000.00 IO
77 Tempe AZ 85283 Maricopa 10,700,000.00 IO
78 Raleigh NC 27612 Wake 10,550,000.00 IO
79 Wilmington NC 28405 New Hanover 10,490,379.23 60,344.52
80 Winston-Salem NC 27127 Forsyth 10,400,000.00 60,493.52
81 Decatur AL 35603 Morgan 10,400,000.00 IO
84 Concord NC 28027 Cabarrus 10,050,000.00 IO
85 Naples FL 34102 Collier 10,000,000.00 57,030.12
86 Miami FL 33143 Miami-Dade 9,250,000.00 52,061.02
87 Scottsdale AZ 85254 Maricopa 9,200,000.00 IO
89 Los Angeles CA 91316 Los Angeles 8,800,000.00 IO
90 Willimantic CT 06226 Windham 8,800,000.00 IO
91 Philadelphia PA 19131 Philadelphia 8,080,000.00 IO
92 Egg Harbor NJ 8234 Atlantic 8,000,000.00 47,763.64
93 Portland ME 04101 Cumberland 8,000,000.00 46,249.69
94 Bath ME 04530 Sagadahoc 7,920,000.00 IO
95 Philadelphia PA 19152 Philadelphia 7,400,000.00 IO
96 Winston-Salem NC 27127 Forsyth 7,100,000.00 41,298.46
97 Bennington VT 05201 Bennington 6,994,334.74 42,374.43
100 Fort Worth TX 76140 Tarrant 6,262,000.00 IO
101 Pennington NJ 08534 Mercer 6,100,000.00 36,298.51
103 Manalapan NJ 07726 Monmouth 6,000,000.00 35,745.75
105 Various Various Various Various 5,900,000.00 35,297.65
105.01 Saint Louis MO 63102 Saint Louis City
105.02 Albuquerque NM 87110 Bernalillo
105.03 Albuquerque NM 87110 Bernalillo
105.04 Fort Wayne IN 46802 Allen
105.05 Albuquerque NM 87102 Bernalillo
106 Indian Trail NC 28079 Union 5,650,000.00 33,151.55
108 Lafayette IN 47905 Tippecanoe 5,560,000.00 IO
109 Houston TX 77027 Harris 5,350,000.00 IO
110 Houston TX 77058 Harris 5,250,000.00 IO
111 Smyrna GA 30080 Cobb 5,000,000.00 IO
112 Chicago IL 60626 Cook 4,700,000.00 IO
113 Chicago IL 60637 Cook 4,600,000.00 IO
114 Saint Louis MO 63144 Saint Louis 4,350,000.00 IO
115 Stone Mountain GA 30087 Dekalb 4,300,000.00 IO
117 Heber City UT 84032 Wasatch 4,200,000.00 25,343.37
119 Houston TX 77027 Harris 3,850,000.00 IO
121 Saint Louis MO 63101 Saint Louis City 3,500,000.00 20,514.07
122 Eagle CO 81613 Eagle 3,500,000.00 22,465.05
123 Manitowoc WI 54220 Manitowoc 3,478,302.16 25,054.90
124 Arlington TX 76014 Tarrant 3,412,500.00 20,218.95
125 Rockwall TX 75087 Rockwall 3,400,000.00 IO
126 Eden Prairie MN 55344 Hennepin 3,197,148.39 18,613.39
127 Chicago IL 60640 Cook 3,100,000.00 IO
128 Gary IN 46408 Lake 2,747,708.68 16,452.30
129 Hobart IN 46342 Lake 2,747,708.68 16,452.30
130 Ozark MO 65721 Christian 2,399,000.00 IO
131 Menominee MI 49858 Menominee 2,385,121.48 17,180.50
133 Rutland VT 5701 Rutland 2,095,000.00 IO
134 Watertown WI 53094 Jefferson 1,994,000.00 IO
135 Malvern PA 19355 Chester 1,856,543.66 11,068.07
138 Narragansett RI 02882 Washington 1,571,000.00 9,439.15
139 Greensboro NC 27407 Guilford 1,117,872.17 6,593.05
142 Essex Junction VT 5452 Chittenden 1,097,910.17 6,475.31
Remaining
Mortgage Original Term Term to
Loan Mortgage Number Unit of to Maturity or Maturity or
Number Grace Days Rate (%) of Units Measure ARD (Mos.) ARD (Mos.)
- -----------------------------------------------------------------------------------------------------------------------------------
1 5.7970% 9,848,341 Sq. Ft. 60 59
1.01 678,348 Sq. Ft.
1.02 904,226 Sq. Ft.
1.03 944,141 Sq. Ft.
1.04 711,495 Sq. Ft.
1.05 731,234 Sq. Ft.
1.06 473,988 Sq. Ft.
1.07 463,182 Sq. Ft.
1.08 465,765 Sq. Ft.
1.09 466,948 Sq. Ft.
1.10 294,521 Sq. Ft.
1.11 329,695 Sq. Ft.
1.12 251,088 Sq. Ft.
1.13 163,936 Sq. Ft.
1.14 277,672 Sq. Ft.
1.15 216,469 Sq. Ft.
1.16 102,822 Sq. Ft.
1.17 148,952 Sq. Ft.
1.18 764,103 Sq. Ft.
1.19 380,743 Sq. Ft.
1.20 1,079,013 Sq. Ft.
2 5.6630% 5,796 Rooms 60 60
2.01 288 Rooms
2.02 180 Rooms
2.03 216 Rooms
2.04 144 Rooms
2.05 120 Rooms
2.06 112 Rooms
2.07 109 Rooms
2.08 126 Rooms
2.09 106 Rooms
2.10 147 Rooms
2.11 152 Rooms
2.12 114 Rooms
2.13 128 Rooms
2.14 126 Rooms
2.15 128 Rooms
2.16 123 Rooms
2.17 110 Rooms
2.18 120 Rooms
2.19 112 Rooms
2.20 123 Rooms
2.21 136 Rooms
2.22 123 Rooms
2.23 144 Rooms
2.24 144 Rooms
2.25 112 Rooms
2.26 136 Rooms
2.27 120 Rooms
2.28 112 Rooms
2.29 120 Rooms
2.30 88 Rooms
2.31 128 Rooms
2.32 130 Rooms
2.33 120 Rooms
2.34 145 Rooms
2.35 94 Rooms
2.36 92 Rooms
2.37 104 Rooms
2.38 118 Rooms
2.39 88 Rooms
2.40 96 Rooms
2.41 98 Rooms
2.42 99 Rooms
2.43 124 Rooms
2.44 105 Rooms
2.45 144 Rooms
2.46 92 Rooms
3 5.6000% 7,297,943 Sq. Ft. 120 120
3.01 245,774 Sq. Ft.
3.02 260,797 Sq. Ft.
3.03 227,209 Sq. Ft.
3.04 307,716 Sq. Ft.
3.05 312,546 Sq. Ft.
3.06 273,307 Sq. Ft.
3.07 281,244 Sq. Ft.
3.08 240,560 Sq. Ft.
3.09 272,385 Sq. Ft.
3.10 227,085 Sq. Ft.
3.11 108,565 Sq. Ft.
3.12 217,619 Sq. Ft.
3.13 132,745 Sq. Ft.
3.14 271,729 Sq. Ft.
3.15 149,658 Sq. Ft.
3.16 126,486 Sq. Ft.
3.17 186,212 Sq. Ft.
3.18 130,609 Sq. Ft.
3.19 152,667 Sq. Ft.
3.20 119,197 Sq. Ft.
3.21 243,176 Sq. Ft.
3.22 158,222 Sq. Ft.
3.23 89,627 Sq. Ft.
3.24 82,441 Sq. Ft.
3.25 104,460 Sq. Ft.
3.26 204,216 Sq. Ft.
3.27 121,766 Sq. Ft.
3.28 71,430 Sq. Ft.
3.29 66,539 Sq. Ft.
3.30 98,317 Sq. Ft.
3.31 69,471 Sq. Ft.
3.32 137,757 Sq. Ft.
3.33 125,653 Sq. Ft.
3.34 90,566 Sq. Ft.
3.35 83,929 Sq. Ft.
3.36 95,229 Sq. Ft.
3.37 117,723 Sq. Ft.
3.38 93,643 Sq. Ft.
3.39 70,555 Sq. Ft.
3.40 128,210 Sq. Ft.
3.41 75,492 Sq. Ft.
3.42 73,271 Sq. Ft.
3.43 67,721 Sq. Ft.
3.44 76,512 Sq. Ft.
3.45 62,840 Sq. Ft.
3.46 60,712 Sq. Ft.
3.47 67,475 Sq. Ft.
3.48 73,986 Sq. Ft.
3.49 68,927 Sq. Ft.
3.50 66,986 Sq. Ft.
3.51 49,097 Sq. Ft.
3.52 57,884 Sq. Ft.
4 5.9200% 354,298 Sq. Ft. 120 118
5 6.3800% 343 Rooms 120 120
6 5.5100% 678,553 Sq. Ft. 120 120
6.01 432,327 Sq. Ft.
6.02 143,129 Sq. Ft.
6.03 103,097 Sq. Ft.
7 5.9523333333% 1,396 Rooms 120 118
7.01 400 Rooms
7.02 312 Rooms
7.03 150 Rooms
7.04 388 Rooms
7.05 146 Rooms
8 5.6810% 413,828 Sq. Ft. 60 59
9 5.7550% 539,661 Sq. Ft. 120 119
10 5.6450% 287,494 Sq. Ft. 126 124
11 12 or more (max 5 notices, 5.6800% 296,707 Sq. Ft. 120 118
no more than 2 per year)
12 5.3100% 524,479 Sq. Ft. 120 120
13 5.7530% 186,575 Sq. Ft. 120 119
14 5.9800% 414,202 Sq. Ft. 120 120
15 5.6450% 165,184 Sq. Ft. 126 124
16 5.6950% 166,761 Sq. Ft. 60 59
17 5.5900% 165,662 Sq. Ft. 120 119
18 5.6450% 147,047 Sq. Ft. 126 124
19 5.5500% 309,360 Sq. Ft. 120 119
20 5.8900% 251 Rooms 120 119
21 5.4800% 712 Units 120 119
21.01 456 Units
21.02 256 Units
22 5.9800% 176,977 Sq. Ft. 120 119
22.01 92,996 Sq. Ft.
22.02 83,981 Sq. Ft.
23 5.7800% 190 Rooms 120 119
24 5.9700% 931,560 Sq. Ft. 120 118
25 5.8100% 404 Units 60 60
26 5.9070% 498 Rooms 120 118
27 5.6800% 518 Units 120 119
28 5.6500% 369 Units 120 119
29
30 5.8300% 318 Units 120 119
31 5.8100% 318 Units 60 60
32 5.6400% 171,955 Sq. Ft. 120 119
33 6.0500% 372 Rooms 120 118
34 5.5900% 272,181 Sq. Ft. 120 119
35 5.5745% 101,278 Sq. Ft. 120 120
36 10 5.8400% 225,922 Sq. Ft. 120 119
37 5.6800% 441,648 Sq. Ft. 120 118
38 5.8000% 392 Units 120 119
39 5.7700% 191 Rooms 60 59
40 5.7000% 6,000 Sq. Ft. 120 120
41 5.5900% 316,576 Sq. Ft. 120 119
42 5.5200% 74,786 Sq. Ft. 120 119
43 5.7400% 17,000 Sq. Ft. 120 120
44 5.7170% 54,000 Sq. Ft. 60 59
45 5.6000% 232 Units 120 117
46 5.8100% 127,484 Sq. Ft. 120 119
47 5.7600% 168,791 Sq. Ft. 120 119
48 5.6800% 93,665 Sq. Ft. 120 119
49 6.1500% 152 Units 60 59
50 5.6680% 131,317 Sq. Ft. 120 119
51 5.6500% 185,327 Sq. Ft. 120 119
52 5.7900% 312 Units 60 59
53 5.7000% 89,004 Sq. Ft. 120 120
54 5.8100% 60,000 Sq. Ft. 84 83
55 6.5800% 924 Units 60 58
56 5.7800% 180,990 Sq. Ft. 120 119
57 5.5200% 114,971 Sq. Ft. 120 119
57.01 91,654 Sq. Ft.
57.02 23,317 Sq. Ft.
58 5.7700% 43,028 Sq. Ft. 120 119
58.01 13,356 Sq. Ft.
58.02 8,902 Sq. Ft.
58.03 9,010 Sq. Ft.
58.04 6,000 Sq. Ft.
58.05 5,760 Sq. Ft.
59 5.6500% 104 Units 120 119
60 5.5900% 85,277 Sq. Ft. 120 119
61 5.6500% 192 Units 120 119
62 6.0300% 139 Beds 60 57
63 5.8400% 67,922 Sq. Ft. 120 119
64 7.1300% 41,400 Sq. Ft. 120 116
65 5.7300% 85,636 Sq. Ft. 120 120
66 5.1800% 243 Units 120 120
67 5.8100% 56,351 Sq. Ft. 120 117
68 5.8800% 70,722 Sq. Ft. 120 119
69 5.6600% 216 Units 120 118
70 5.7800% 96 Units 120 118
71 5.6500% 506,828 Sq. Ft. 120 119
72 5.9000% 50,962 Sq. Ft. 120 119
73 5.5600% 69,043 Sq. Ft. 120 120
74 5.5500% 27,715 Sq. Ft. 120 119
75 5.7900% 216 Units 60 59
76 6.2280% 80,201 Sq. Ft. 120 120
77 5.7500% 169 Units 120 120
78 5.5600% 131,572 Sq. Ft. 60 59
79 5.6100% 52,441 Sq. Ft. 120 119
80 5.7200% 285 Units 120 119
81 5.7600% 103,429 Sq. Ft. 120 119
84 5.6000% 79,546 Sq. Ft. 120 119
85 5.5400% 55,132 Sq. Ft. 120 120
86 5.8900% 17,207 Sq. Ft. 120 120
87 5.6800% 61,896 Sq. Ft. 120 119
89 5.9800% 35,113 Sq. Ft. 120 119
90 5.5900% 125,626 Sq. Ft. 120 119
91 5.5500% 186 Units 120 119
92 5.9610% 139,456 Sq. Ft. 120 120
93 5.6640% 39,935 Sq. Ft. 120 119
94 5.5500% 43,677 Sq. Ft. 119 118
95 5.5500% 196 Units 120 119
96 5.7200% 203 Units 120 119
97 6.0900% 80 Rooms 120 119
100 5.4500% 107,520 Sq. Ft. 120 119
101 5.9300% 26,489 Sq. Ft. 120 119
103 5.9410% 38,247 Sq. Ft. 120 120
105 5.9800% 621,847 Sq. Ft. 120 119
105.01 104,315 Sq. Ft.
105.02 254,850 Sq. Ft.
105.03 218,100 Sq. Ft.
105.04 35,870 Sq. Ft.
105.05 8,712 Sq. Ft.
106 5.8000% 33,586 Sq. Ft. 120 119
108 5.7400% 204 Units 120 119
109 5.8500% 48,998 Sq. Ft. 60 59
110 5.6500% 59,709 Sq. Ft. 120 119
111 5.6900% 34,767 Sq. Ft. 120 119
112 5.9300% 66 Units 120 119
113 5.7800% 63 Units 120 119
114 5.5700% 83 Units 120 118
115 6.0200% 71,268 Sq. Ft. 60 53
117 6.0600% 75 Rooms 120 118
119 6.5800% 30,772 Sq. Ft. 60 59
121 5.7900% 177,865 Sq. Ft. 120 119
122 5.9600% 118 Rooms 120 120
123 5.9900% 229,500 Sq. Ft. 120 117
124 5.8900% 26,552 Sq. Ft. 120 119
125 6.0530% 64,197 Sq. Ft. 60 60
126 5.7200% 18,000 Sq. Ft. 120 119
127 5.7500% 51 Units 120 120
128 5.9800% 68,750 Sq. Ft. 120 119
129 5.9800% 53,763 Sq. Ft. 120 119
130 5.4600% 14,820 Sq. Ft. 120 116
131 5.9900% 141,916 Sq. Ft. 120 117
133 5.6700% 21,688 Sq. Ft. 120 116
134 5.6700% 23,627 Sq. Ft. 120 116
135 5.9300% 32,416 Sq. Ft. 120 118
138 6.0200% 31 Rooms 120 119
139 5.8300% 40,025 Sq. Ft. 120 118
142 5.8300% 20,000 Sq. Ft. 120 118
Original Remaining
Mortgage Amort Amort Master Anticipated
Loan Maturity Date Term Term Ground Servicing ARD Repayment
Number or ARD (Mos.) (Mos.) Lease Fee Rate Loan Date
- ----------------------------------------------------------------------------------------------------------------------------
1 05/07/12 IO IO Various 0.02000% N
1.01 Pledge
1.02 Fee
1.03 Fee
1.04 Fee
1.05 Fee
1.06 Leasehold
1.07 Fee
1.08 Fee
1.09 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 NA
1.19 NA
1.20 NA
2 06/11/12 IO IO Various 0.02000% N
2.01 Fee
2.02 Fee
2.03 Fee
2.04 Fee
2.05 Fee
2.06 Fee
2.07 Fee
2.08 Fee
2.09 Fee
2.10 Fee
2.11 Fee
2.12 Fee
2.13 Fee
2.14 Fee
2.15 Fee
2.16 Leasehold
2.17 Fee
2.18 Fee
2.19 Fee
2.20 Fee
2.21 Fee
2.22 Fee
2.23 Fee
2.24 Fee
2.25 Fee
2.26 Fee
2.27 Fee
2.28 Fee
2.29 Fee
2.30 Fee
2.31 Fee
2.32 Fee
2.33 Fee
2.34 Fee
2.35 Fee
2.36 Fee
2.37 Fee
2.38 Fee
2.39 Fee
2.40 Fee
2.41 Fee
2.42 Fee
2.43 Fee
2.44 Fee
2.45 Fee
2.46 Fee
3 07/05/17 IO IO Fee 0.02000% N
3.01 Fee
3.02 Fee
3.03 Fee
3.04 Fee
3.05 Fee
3.06 Fee
3.07 Fee
3.08 Fee
3.09 Fee
3.10 Fee
3.11 Fee
3.12 Fee
3.13 Fee
3.14 Fee
3.15 Fee
3.16 Fee
3.17 Fee
3.18 Fee
3.19 Fee
3.20 Fee
3.21 Fee
3.22 Fee
3.23 Fee
3.24 Fee
3.25 Fee
3.26 Fee
3.27 Fee
3.28 Fee
3.29 Fee
3.30 Fee
3.31 Fee
3.32 Fee
3.33 Fee
3.34 Fee
3.35 Fee
3.36 Fee
3.37 Fee
3.38 Fee
3.39 Fee
3.40 Fee
3.41 Fee
3.42 Fee
3.43 Fee
3.44 Fee
3.45 Fee
3.46 Fee
3.47 Fee
3.48 Fee
3.49 Fee
3.50 Fee
3.51 Fee
3.52 Fee
4 04/11/17 IO IO Leasehold 0.02000% N
5 06/11/17 360 360 Leasehold 0.02000% N
6 06/11/17 IO IO Fee 0.02000% N
6.01 Fee
6.02 Fee
6.03 Fee
7 04/11/17 360 360 Fee 0.02000% N
7.01 Fee
7.02 Fee
7.03 Fee
7.04 Fee
7.05 Fee
8 05/11/12 IO IO Fee 0.02000% N
9 05/11/17 IO IO Both 0.02000% N
10 10/11/17 IO IO Fee 0.02000% N
11 04/01/17 360 358 Fee 0.02000% N
12 06/11/17 IO IO Fee 0.02000% N
13 05/11/17 IO IO Fee 0.02000% N
14 06/11/17 IO IO Fee 0.02000% N
15 10/11/17 IO IO Fee 0.02000% N
16 05/11/12 IO IO Fee 0.02000% N
17 05/11/17 IO IO Fee 0.02000% N
18 10/11/17 IO IO Fee 0.02000% N
19 05/11/17 IO IO Fee 0.02000% N
20 05/11/17 360 360 Fee 0.02000% N
21 05/11/17 IO IO Fee 0.02000% N
21.01 Fee
21.02 Fee
22 05/11/17 IO IO Fee 0.02000% N
22.01 Fee
22.02 Fee
23 05/11/17 IO IO Leasehold 0.02000% N
24 04/11/17 IO IO Fee 0.02000% N
25 06/11/12 IO IO Fee 0.02000% N
26 04/11/17 360 360 Fee 0.02000% N
27 05/11/17 IO IO Fee 0.02000% N
28 05/11/17 IO IO Fee 0.02000% N
29
30 05/11/17 IO IO Fee 0.02000% N
31 06/11/12 IO IO Fee 0.02000% N
32 05/11/17 IO IO Fee 0.02000% N
33 04/11/17 360 360 Fee 0.06000% N
34 05/11/17 IO IO Fee 0.02000% N
35 06/11/17 IO IO Fee 0.02000% N
36 05/01/17 IO IO Both 0.02000% N
37 04/11/17 360 360 Both 0.02000% N
38 05/11/17 IO IO Fee 0.02000% N
39 05/11/12 IO IO Both 0.02000% N
40 06/11/17 IO IO Fee 0.02000% N
41 05/11/17 IO IO Fee 0.02000% N
42 05/11/17 IO IO Fee 0.02000% N
43 06/11/17 IO IO Fee 0.02000% N
44 05/11/12 IO IO Fee 0.02000% N
45 03/11/17 IO IO Fee 0.02000% N
46 05/11/17 IO IO Fee 0.02000% N
47 05/11/17 IO IO Fee 0.02000% N
48 05/11/17 IO IO Fee 0.02000% N
49 05/11/12 IO IO Fee 0.02000% N
50 05/11/17 360 360 Fee 0.02000% N
51 05/11/17 IO IO Fee 0.02000% N
52 05/11/12 IO IO Fee 0.02000% N
53 06/11/17 IO IO Fee 0.02000% N
54 05/11/14 IO IO Fee 0.02000% N
55 04/11/12 360 360 Both 0.02000% N
56 05/11/17 IO IO Fee 0.02000% N
57 05/11/17 360 360 Fee 0.02000% N
57.01 Fee
57.02 Fee
58 05/11/17 IO IO Fee 0.02000% N
58.01 Fee
58.02 Fee
58.03 Fee
58.04 Fee
58.05 Fee
59 05/11/17 IO IO Fee 0.05000% N
60 05/11/17 IO IO Fee 0.02000% N
61 05/11/17 IO IO Fee 0.05000% N
62 03/11/12 360 360 Fee 0.02000% N
63 05/11/17 360 359 Fee 0.02000% N
64 02/11/17 300 296 Fee 0.02000% N
65 06/11/17 360 360 Fee 0.02000% N
66 06/11/17 360 360 Fee 0.02000% N
67 03/11/17 IO IO Fee 0.02000% N
68 05/11/17 IO IO Fee 0.04000% N
69 04/11/17 IO IO Fee 0.02000% N
70 04/11/17 360 358 Fee 0.02000% N
71 05/11/17 360 360 Fee 0.02000% N
72 05/11/17 IO IO Fee 0.02000% Y 5/11/2017
73 06/11/17 IO IO Fee 0.02000% N
74 05/11/17 IO IO Fee 0.02000% N
75 05/11/12 IO IO Fee 0.02000% N
76 06/11/17 IO IO Fee 0.02000% N
77 06/11/17 IO IO Fee 0.02000% N
78 05/11/12 IO IO Leasehold 0.02000% N
79 05/11/17 360 359 Fee 0.02000% N
80 05/11/17 360 360 Fee 0.02000% N
81 05/11/17 IO IO Fee 0.02000% N
84 05/11/17 IO IO Fee 0.02000% N
85 06/11/17 360 360 Fee 0.02000% N
86 06/11/17 420 420 Fee 0.02000% N
87 05/11/17 IO IO Fee 0.04000% N
89 05/11/17 IO IO Fee 0.02000% N
90 05/11/17 IO IO Fee 0.02000% N
91 05/11/17 IO IO Fee 0.02000% N
92 06/11/17 360 360 Fee 0.02000% N
93 05/11/17 360 360 Fee 0.02000% N
94 04/11/17 IO IO Fee 0.02000% N
95 05/11/17 IO IO Fee 0.02000% N
96 05/11/17 360 360 Fee 0.02000% N
97 05/11/17 360 359 Both 0.02000% N
100 05/11/17 IO IO Fee 0.02000% Y 5/11/2017
101 05/11/17 360 360 Fee 0.02000% N
103 06/11/17 360 360 Fee 0.02000% N
105 05/11/17 360 360 Fee 0.02000% N
105.01 Fee
105.02 Fee
105.03 Fee
105.04 Fee
105.05 Fee
106 05/11/17 360 360 Both 0.02000% N
108 05/11/17 IO IO Fee 0.07000% N
109 05/11/12 IO IO Fee 0.07000% N
110 05/11/17 IO IO Fee 0.07000% N
111 05/11/17 IO IO Fee 0.02000% N
112 05/11/17 IO IO Fee 0.02000% N
113 05/11/17 IO IO Fee 0.02000% N
114 04/11/17 IO IO Fee 0.09000% N
115 11/11/11 IO IO Fee 0.02000% N
117 04/11/17 360 360 Fee 0.02000% N
119 05/11/12 IO IO Fee 0.07000% N
121 05/11/17 360 360 Fee 0.02000% N
122 06/11/17 300 300 Fee 0.02000% N
123 03/11/17 240 237 Fee 0.02000% N
124 05/11/17 360 360 Fee 0.02000% N
125 06/11/12 IO IO Fee 0.02000% N
126 05/11/17 360 359 Fee 0.02000% N
127 06/11/17 IO IO Fee 0.02000% N
128 05/11/17 360 359 Leasehold 0.02000% N
129 05/11/17 360 359 Fee 0.02000% N
130 02/11/17 IO IO Fee 0.02000% Y 2/11/2017
131 03/11/17 240 237 Fee 0.02000% N
133 02/11/17 IO IO Fee 0.02000% Y 2/11/2017
134 02/11/17 IO IO Fee 0.02000% Y 2/11/2017
135 04/11/17 360 358 Fee 0.02000% N
138 05/11/17 360 360 Fee 0.07000% N
139 04/11/17 360 358 Fee 0.02000% N
142 04/11/17 360 358 Fee 0.02000% N
Mortgage
Loan Loan Environmental
Number Additional Interest Rate Originator Insurance
- -----------------------------------------------------------------------------------------------------------------------------------
1 Wachovia N
1.01 N
1.02 N
1.03 N
1.04 N
1.05 N
1.06 N
1.07 N
1.08 N
1.09 N
1.10 N
1.11 N
1.12 N
1.13 N
1.14 N
1.15 N
1.16 N
1.17 N
1.18 N
1.19 N
1.20 N
2 Wachovia N
2.01 N
2.02 N
2.03 N
2.04 N
2.05 N
2.06 N
2.07 N
2.08 N
2.09 N
2.10 N
2.11 N
2.12 N
2.13 N
2.14 N
2.15 N
2.16 N
2.17 N
2.18 N
2.19 N
2.20 N
2.21 N
2.22 N
2.23 N
2.24 N
2.25 N
2.26 N
2.27 N
2.28 N
2.29 N
2.30 N
2.31 N
2.32 N
2.33 N
2.34 N
2.35 N
2.36 N
2.37 N
2.38 N
2.39 N
2.40 N
2.41 N
2.42 N
2.43 N
2.44 N
2.45 N
2.46 N
3 Wachovia N
3.01 N
3.02 N
3.03 N
3.04 N
3.05 N
3.06 N
3.07 N
3.08 N
3.09 N
3.10 N
3.11 N
3.12 N
3.13 N
3.14 N
3.15 N
3.16 N
3.17 N
3.18 N
3.19 N
3.20 N
3.21 N
3.22 N
3.23 N
3.24 N
3.25 N
3.26 N
3.27 N
3.28 N
3.29 N
3.30 N
3.31 N
3.32 N
3.33 N
3.34 N
3.35 N
3.36 N
3.37 N
3.38 N
3.39 N
3.40 N
3.41 N
3.42 N
3.43 N
3.44 N
3.45 N
3.46 N
3.47 N
3.48 N
3.49 N
3.50 N
3.51 N
3.52 N
4 Wachovia N
5 Wachovia N
6 Wachovia N
6.01 N
6.02 N
6.03 N
7 Wachovia N
7.01 N
7.02 N
7.03 N
7.04 N
7.05 N
8 Wachovia N
9 Wachovia N
10 Wachovia N
11 Wachovia N
12 Wachovia N
13 Wachovia N
14 Wachovia N
15 Wachovia N
16 Wachovia N
17 Wachovia N
18 Wachovia N
19 Wachovia N
20 Wachovia N
21 Wachovia N
21.01 N
21.02 N
22 Wachovia N
22.01 N
22.02 N
23 Wachovia N
24 Wachovia N
25 Wachovia N
26 Wachovia N
27 Wachovia N
28 Wachovia N
29
30 Wachovia N
31 Wachovia N
32 Wachovia N
33 Wachovia N
34 Wachovia N
35 Wachovia N
36 Wachovia N
37 Wachovia N
38 Wachovia N
39 Wachovia N
40 Wachovia N
41 Wachovia N
42 Wachovia N
43 Wachovia N
44 Wachovia N
45 Wachovia N
46 Wachovia N
47 Wachovia N
48 Wachovia N
49 Wachovia N
50 Wachovia N
51 Wachovia N
52 Wachovia N
53 Wachovia N
54 Wachovia N
55 Wachovia N
56 Wachovia N
57 Wachovia N
57.01 N
57.02 N
58 Wachovia N
58.01 N
58.02 N
58.03 N
58.04 N
58.05 N
59 Wachovia N
60 Wachovia N
61 Wachovia N
62 Wachovia N
63 Wachovia N
64 Wachovia N
65 Wachovia N
66 Wachovia N
67 Wachovia N
68 Wachovia N
69 Wachovia N
70 Wachovia N
71 Wachovia N
72 Greater of initial interest rate plus 3% or TCMYI plus 3% (capped at Maximum Lawful Rate) Wachovia N
73 Wachovia N
74 Wachovia N
75 Wachovia N
76 Wachovia N
77 Wachovia N
78 Wachovia N
79 Wachovia N
80 Wachovia N
81 Wachovia N
84 Wachovia N
85 Wachovia N
86 Wachovia N
87 Wachovia N
89 Wachovia N
90 Wachovia N
91 Wachovia N
92 Wachovia N
93 Wachovia N
94 Wachovia N
95 Wachovia N
96 Wachovia N
97 Wachovia N
100 Lesser of the greater of initial interest rate plus 2.5% or TCMYI plus 2.5% Wachovia N
101 Wachovia N
103 Wachovia N
105 Wachovia N
105.01 N
105.02 N
105.03 N
105.04 N
105.05 N
106 Wachovia N
108 Wachovia N
109 Wachovia N
110 Wachovia N
111 Wachovia N
112 Wachovia N
113 Wachovia N
114 Wachovia N
115 Wachovia N
117 Wachovia N
119 Wachovia N
121 Wachovia N
122 Wachovia N
123 Wachovia N
124 Wachovia N
125 Wachovia N
126 Wachovia N
127 Wachovia N
128 Wachovia N
129 Wachovia N
130 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia N
131 Wachovia N
133 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia N
134 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia N
135 Wachovia N
138 Wachovia N
139 Wachovia N
142 Wachovia N
Mortgage Cross Collateralized Interest
Loan and Cross Defaulted Prepayment Early Secured Accrual
Number Loan Flag Provisions Defeasance by LC Method Lockbox
- ------------------------------------------------------------------------------------------------------------------------------------
1 Y N N Actual/360 Day 1
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2 N N N Actual/360 Springing
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3 N Y N Actual/360
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.21
3.22
3.23
3.24
3.25
3.26
3.27
3.28
3.29
3.30
3.31
3.32
3.33
3.34
3.35
3.36
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 Y N N Actual/360 Day 1
5 Y N N Actual/360 Day 1
6 N N N Actual/360
6.01
6.02
6.03
7 Y N N Actual/360 Day 1
7.01
7.02
7.03
7.04
7.05
8 Y N N Actual/360 Day 1
9 Y N N Actual/360
10 Y Y N Actual/360 Day 1
11 Y Y N 30/360 Day 1
12 Y N N Actual/360 Day 1
13 Y N N Actual/360 Day 1
14 Y N Y Actual/360 Day 1
15 Y Y N Actual/360 Day 1
16 Y N N Actual/360 Day 1
17 N N N Actual/360
18 Y Y N Actual/360 Day 1
19 N N N Actual/360
20 Y N N Actual/360 Day 1
21 Y N N Actual/360
21.01
21.02
22 Y N N Actual/360 Day 1
22.01
22.02
23 Y N N Actual/360 Springing
24 Y N Y Actual/360 Day 1
25 N N Y Actual/360
26 Y N N Actual/360 Day 1
27 Y N N Actual/360 Day 1
28 Y N N Actual/360
29
30 N N N Actual/360 Springing
31 N N Y Actual/360
32 Y N N Actual/360
33 N N N Actual/360
34 Y N N Actual/360
35 Y N N Actual/360 Springing
36 Y N N Actual/360
37 Y N N Actual/360 Day 1
38 Y N Y Actual/360
39 N N N Actual/360
40 Y N N Actual/360 Day 1
41 Y N N Actual/360
42 Y N N Actual/360
43 Y N N Actual/360
44 Y N N Actual/360 Day 1
45 Y N N Actual/360
46 Y N Y Actual/360
47 Y N N Actual/360
48 Y N N Actual/360 Day 1
49 N N N Actual/360
50 Y N N Actual/360
51 N N N Actual/360
52 Albuquerque Multifamily Portfolio Y N N Actual/360
53 N N N Actual/360
54 Y N N Actual/360
55 N N N Actual/360
56 Y N Y Actual/360
57 Y N Actual/360
57.01
57.02
58 Y N Actual/360
58.01
58.02
58.03
58.04
58.05
59 Y N N Actual/360 Springing
60 Y N N Actual/360
61 N N N Actual/360
62 N N N Actual/360
63 Y N N Actual/360
64 N N N Actual/360
65 Y N N Actual/360 Day 1
66 Y N N Actual/360 Springing
67 Y N N Actual/360
68 N N N Actual/360
69 Y N N Actual/360
70 Y N N Actual/360
71 Y N N Actual/360
72 N N N Actual/360 Day 1
73 Y N N Actual/360
74 N N N Actual/360
75 Albuquerque Multifamily Portfolio Y N N Actual/360
76 N N N Actual/360
77 N N N Actual/360 Springing
78 N N N Actual/360
79 Y N N Actual/360
80 N N N Actual/360
81 Y N Y Actual/360
84 Y N N Actual/360
85 Y N N Actual/360
86 Y N N Actual/360
87 N N N Actual/360 Day 1
89 Y N N Actual/360 Springing
90 Y N N Actual/360
91 Y N N Actual/360
92 N N N Actual/360
93 Y N N Actual/360
94 Y N N Actual/360 Springing
95 Y N N Actual/360
96 N N N Actual/360
97 Y N N Actual/360
100 Y N N Actual/360 Day 1
101 N N N Actual/360
103 N N N Actual/360
105 Y N N Actual/360
105.01
105.02
105.03
105.04
105.05
106 Y N Y Actual/360
108 Y N N Actual/360
109 Y N N Actual/360
110 Y N N Actual/360
111 N N N Actual/360
112 Y N N Actual/360
113 Y N N Actual/360
114 N N N Actual/360
115 Y N N Actual/360 Springing
117 Y N N Actual/360
119 N N N Actual/360
121 Y N N Actual/360 Springing
122 N N N Actual/360
123 Warehouse Terminal Portfolio Y N N Actual/360
124 Y N N Actual/360
125 N N N Actual/360
126 Y N N Actual/360 Springing
127 Y N N Actual/360
128 Y N N Actual/360
129 Y N N Actual/360
130 Y N N Actual/360 Springing
131 Warehouse Terminal Portfolio Y N N Actual/360
133 Y N N Actual/360 Springing
134 Y N N Actual/360 Springing
135 Archives One Portfolio Y N N Actual/360
138 N N N Actual/360
139 Archives One Portfolio Y N N Actual/360
142 Archives One Portfolio Y N N Actual/360
Mortgage Initial Deposit to
Loan Annual Deposit to Capital Improvements Initial TI/LC Ongoing TI/LC
Number Replacement Reserves Reserve Escrow Footnote
- -----------------------------------------------------------------------------------------------------------------------------------
1 18,200,095
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.21
3.22
3.23
3.24
3.25
3.26
3.27
3.28
3.29
3.30
3.31
3.32
3.33
3.34
3.35
3.36
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 35,904 102,750 3,000,000
5 4.0% of Yearly Gross Revenue
6
6.01
6.02
6.03
7 4.0% of Yearly Gross Revenue 2,500
7.01
7.02
7.03
7.04
7.05
8 41,383 3,815,394 3,500,000 (3)
9 53,966 (3)
10 3,756,047
11
12
13 20,523 86,710 3,000,000 (3)
14 53,847 17,500
15 1,719,172
16 25,014 3,239,131 2,000,000 (3)
17
18 1,940,921
19
20 541,848
21 200,040
21.01
21.02
22 48,894
22.01
22.02
23 282,996 6,250
24 27,947 44,375
25 98,976
26 4.0% of Yearly Gross Revenue
27 77,700
28 92,250
29
30
31 71,556
32 46,428 (3)
33 587,352 85,000
34
35 15,192 1,300,000
36
37 20,209
38 58,800
39
40 31,000
41 31,250
42
43
44 4,960 1,150,000 (3)
45 77,700 37,500
46
47 64,141
48 9,366
49
50 665,000
51
52 24,648
53
54 7,800 (3)
55 40,572
56 18,099
57 22,994 (3)
57.01
57.02
58
58.01
58.02
58.03
58.04
58.05
59 25,792
60
61
62
63
64 6,210
65 6,851
66 60,750
67 23,667 250,000 (3)
68 7,072 500,000 (3)
69 54,000
70
71
72
73 15,190 (3)
74
75 22,464
76 20,400 200,000 (3)
77
78
79
80 71,250 635,345
81 10,400
84
85 11,028 (3)
86 3,786 (3)
87 12,998 (3)
89 8,778
90
91 68,634 828,748
92 33,469 175,000 (3)
93 3,993 (3)
94 6,552 23,125
95 48,216 127,075
96 50,750 364,597
97 3.0% of Yearly Gross Revenue
100
101 2,656 (3)
103 4,972 (3)
105
105.01
105.02
105.03
105.04
105.05
106 (3)
108
109 146,000
110 11,999 (3)
111
112 16,500
113 12,600
114 16,600
115 5,701 93,500
117 56,114 1,047,931
119 117,000
121 50,000
122 70,862
123 22,950
124 2,655 (3)
125 10,272 20,000 (3)
126 1,800
127 10,200
128 6,875
129 214,375
130
131 14,192
133
134
135
138 16,563 13,750
139
142
(1) Three Mortgage Loans (loan numbers 1, 2 and 3) are part of a split loan
structure and the related pari passu companion loans are not included in
the Trust Fund with respect to the Mortgage Loan, unless otherwise
specified. With respect to these Mortgage Loans, unless otherwise
specified, the calculations of LTV Ratios, DSC Ratios and Cut-Off Date
Balances per unit are based on the aggregate indebtedness of or debt
service on, as applicable, the related Mortgage Loan and the related pari
passu companion loan.
(2) With respect to the DDR Southeast Pool Loan (loan number 3), representing
5.8% of the Cut-Off Date Pool Balance (6.5% of the Cut-Off Date Group 1
Balance), an exception to the prepayment protection exists in that the
borrower may voluntarily prepay up to 10.0% of the initial principal
balance of such loan at any time without any obligation to pay any yield
maintenance charge or prepayment premium in connection with such
prepayment.
(3) In addition to any escrows funded at loan closing for potential TI/LC
expenses, the related Mortgage Loan requires funds to be escrowed during
some or all of the loan terms for TI/LC expenses, which may be incurred
during the term of the related Mortgage Loans. In certain instances,
escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
(4) Annual deposits to the replacement reserve are $541,848 through the first
year and 4.0% of gross revenue thereafter.
(5) Commencing March 11, 2009, annual deposits to the replacement reserve are
$200,040.
(6) Commencing July 11, 2009, annual deposit to the replacement reserve is
$98,976.
(7) Commencing on November 11, 2008 annual deposits to the replacement reserve
are $77,700.
(8) Loan number 29 was removed from Annex A-1 included in the Free Writing
Prospectus dated June 10, 2007.
(9) Commencing July 11, 2009, annual deposits to the replacement reserve are
$71,556.
(10) Annual deposits to the replacement reserve are $587,352 through April 11,
2008 and 4.0% of gross revenue thereafter.
(11) The interest rate with respect to the Siena Office Park Loan (loan number
35), representing 0.7% of the Cut-Off Date Pool Balance (0.8% of the
Cut-Off Date Group 1 Balance) may vary during the term of the related
Mortgage Loan. For purposes of the table above as well as calculations
throughout the Prospectus Supplement, the mortgage rate was assumed to be
the average mortgage rate over the term of the related Mortgage Loan. See
"DESCRIPTION OF THE MORTGAGE POOL--Additional Mortgage Loan Information"
in the Prospectus Supplement.
(12) Commencing July 11, 2011, annual deposits to the replacement reserve are
$15,192.
(13) Commencing on June 11, 2010, annual deposits to the replacement reserve
are $25,792.
(14) With respect to the Midtown Square Loan (loan number 74), representing
0.3% of the Cut-Off Date Pool Balance (0.3% of the Cut-Off Date Group 1
Balance), the second largest tenant was determined to be as such based on
the annual base rent paid by the tenant.
(15) Commencing on May 11, 2010, annual deposits to the replacement reserve are
$71,250.
(16) Commencing May 11, 2010, annual deposits to the replacement reserve are
$50,750.
(17) Deposit to the replacement reserve is $6,025 on the first payment date and
annual deposits are 3.0% of gross revenue thereafter.
(18) Commencing June 11, 2010, annual deposits to the replacement reserve are
$2,656.
(19) With respect to the Barchester Pool Loan (loan number 105), representing
0.2% of the Cut-Off Date Pool Balance (0.2% of the Cut-Off Date Group 1
Balance), as of the origination of the related Mortgage Loan, one
Mortgaged Property was improved with a mixed use office/retail building,
one was improved with an apartment complex, one was improved with
multifamily condominium complex, one was improved with a high rise office
building and a seven-story parking garage and the other was improved with
a mixed use project that includes an office tower, retail arcade,
underground parking facilities, meeting space and a 395-room luxury hotel;
however, in all cases, the improvements are not part of the collateral for
the related Mortgaged Property.
(20) Annual deposits to the replacement reserve are $70,682 during the first
year and 4.0% of gross revenue thereafter.
(21) Annual deposits to the replacement reserve are $16,563 through May 11,
2008 and 4.0% of gross revenue thereafter.
EXHIBIT B
Free Writing Prospectuses
1. Current Report on Form FWP, filed June 12, 2007, of the Depositor
identified with SEC Accession Number 0000950136-07-004099.
2. Current Report on Form FWP, filed June 12, 2007, of the Depositor
identified with SEC Accession Number 0000950136-07-004100.
3. Current Report on Form FWP, filed June 21, 2007, of the Depositor
identified with SEC Accession Number 0000914121-07-001538.
EXHIBIT C
None.