Filed On 8/24/07 2:38pm ET ˇ SEC File 333-141638-02 ˇ Accession Number 950136-7-5911
As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
8/24/07 TIAA Seasoned Commercial..2007-C4 8-K{8,9} 8/09/07 5:211 Capital Systems 01/FA
Document/Exhibit Description Pages Size
1: 8-K Current Report HTML 11K
2: EX-1.1 Underwriting Agreement HTML 101K
3: EX-4.1 Pooling and Servicing Agreement HTML 1,499K
4: EX-5.1 Opinion of Thacher Proffitt HTML 8K
5: EX-99.1 Tiaa Mortgage Loan Purchase Agreement HTML 232K
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EXECUTION COPY
TIAA MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of August 2, 2007 (the
"Agreement"), between Teachers Insurance and Annuity Association of America
(together with its successors and permitted assigns hereunder, the "Seller") and
Structured Asset Securities Corporation II (together with its successors and
permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans") as
provided herein. The Purchaser intends to deposit the 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") to be identified as the TIAA Seasoned
Commercial Mortgage Trust 2007-C4. One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to the Trust Fund. The
Certificates will be issued pursuant to a Pooling and Servicing Agreement, to be
dated as of July 11, 2007 (the "Pooling and Servicing Agreement"), between the
Purchaser, as depositor, Wachovia Bank National Association, as master servicer
(the "Master Servicer"), Centerline Servicing, Inc., as special servicer (the
"Special Servicer"), and Wells Fargo Bank, Bank National Association, as trustee
(the "Trustee"). Capitalized terms used but not defined herein have the
respective meanings set forth in the Pooling and Servicing Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Lehman Brothers
Inc. ("Lehman") and Morgan Stanley & Co.
Incorporated ("Morgan" and, together with Lehman, the "Underwriters"), whereby
the Purchaser will sell to the Underwriters all of the Certificates that are to
be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Purchaser has also entered into a Certificate Purchase Agreement (the
"Certificate Purchase Agreement"), dated as of the date hereof, with Lehman (in
such capacity, the "Placement Agent"), whereby the Purchaser will sell to the
Placement Agent certain of the remaining Classes of Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Placement Agent have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of the
date hereof.
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 schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser pursuant to the terms hereof.
The Mortgage Loans will have an aggregate principal balance of $2,091,678,320
(the "Initial Pool Balance") as of the close of business on the Cut-off Date,
after giving effect to any and all payments of principal due thereon on or
before such date, whether or not received. The purchase and sale of the Mortgage
Loans shall take place on August 9, 2007 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The consideration for the
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Mortgage Loans shall consist of: (A) a cash amount equal to a percentage
(mutually agreed upon by the parties hereto) of the Initial Pool Balance, plus
interest accrued on each Mortgage Loan at the related Mortgage Rate (net of the
related Administrative Cost Rate), for the period from and including July 11,
2007 up to but not including the Closing Date, which cash amount shall be paid
to the Seller or its designee by wire transfer in immediately available funds
(or by such other method as shall be mutually acceptable to the parties hereto)
on the Closing Date; and (B) a 100.0% Percentage Interest in each of the Class
R-I, Class R-II and Class R-III Certificates (all such Residual Interest
Certificates, the "Residual Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 8 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, subject to the rights of certain
Sub-Servicers to primary service certain Mortgage Loans as identified on Exhibit
K to the Pooling and Servicing Agreement. The Mortgage Loan Schedule, as it may
be amended, shall conform to the requirements set forth in this Agreement and
the Pooling and Servicing Agreement.
(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 for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with (i) the Trustee or a Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in accordance with the
terms of, and conforming to the requirements set forth in, the Pooling and
Servicing Agreement, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, the appropriate Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall, through an Independent third party (the
"Recording Agent") retained by it, as and in the manner provided in the Pooling
and Servicing Agreement (and in any event within 45 days following the later of
the Closing Date and the date on which all necessary recording information is
available to the Recording Agent), cause (i) each assignment of Mortgage and
each assignment of Assignment of Leases, in favor of, and delivered as part of
the related Mortgage File to the Trustee, to be submitted for recordation in the
appropriate public office for real property records, and (ii) such assignments
to be delivered to the Trustee following their return by the applicable public
recording office, with copies of any such returned assignments to be delivered
by the Trustee to the Master Servicer, at the expense of the Seller, at least
every 90 days after the Closing Date (or at additional times upon the request of
the Master Servicer if reasonably necessary for the ongoing administration
and/or servicing of the related Mortgage Loan by the Master Servicer); provided
that, in
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those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, a certified copy
of the recorded original shall be forwarded to the Trustee. If any such document
or instrument is lost or returned unrecorded because of a defect therein, then
the Seller shall prepare a substitute therefor or cure such defect or cause such
to be done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording and delivery contemplated in the preceding paragraph, including,
without limitation, any out-of-pocket costs and expenses that may be incurred by
the Trustee in connection with any such recording or delivery performed by the
Trustee at the Seller's request and the fees of the Recording Agent.
In addition to the foregoing the Seller is required, at the expense of
the Seller and as and in the manner provided in the Pooling and Servicing
Agreement, with respect to each Mortgage Loan secured by a hotel or hospitality
property (i) to promptly (and in any event within 45 days following the Closing
Date) file or cause to be filed in the appropriate public office for UCC
Financing Statements, each related assignment of UCC Financing Statement
prepared by or on behalf of the Seller in favor of the Trustee and described
under clause (xiv) of the definition of "Mortgage File" and (ii) to cause each
such assignment of UCC Financing Statement to be delivered to the Trustee
following its return by the appropriate public filing office for UCC Financing
Statements, with copies of any such returned assignments to be delivered by the
Trustee to the Master Servicer, at the expense of the Seller, at least every 90
days after the Closing Date (or at such additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Mortgage Loan by the Master Servicer). The Seller also
hereby agrees to (i) cause each assignment of UCC Financing Statement referred
to in the prior sentence that is filed by or on behalf of the Seller to reflect
that the file copy thereof should be returned to the Trustee or its agent
following filing, and (ii) to forward to the Trustee filing confirmation, if
any, received by the Seller in connection with assignments of UCC Financing
Statements filed in accordance with this paragraph.
(e) With respect to any Mortgage Loan, the Seller shall, within 45
days of the Closing Date, deliver or cause to be delivered to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer) the following documents (other than any document that constitutes
part of the Mortgage File for such Mortgage Loan): copies of any final
appraisal, final survey, final engineering report, final environmental report,
opinion letters of counsel to the related mortgagor delivered in connection with
the closing of such Mortgage Loan, escrow agreements, reserve agreements,
organizational documentation for the related mortgagor, organizational
documentation for any related guarantor or indemnitor, if the related guarantor
or indemnitor is an entity, insurance certificates or insurance review reports,
leases for tenants representing 10% or more of the annual income with respect to
the related Mortgaged Property, final seismic report and property management
agreements, rent roll, property operating statement and financial statements for
the related guarantor or indemnitor, cash management or lockbox agreement,
zoning letters or zoning reports and the documents, if any, specifically set
forth on Exhibit D hereto (collectively, the "Mortgage Origination Documents"),
but in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) is reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loan
by the Master Servicer or Special Servicer in connection with its duties under
the Pooling and Servicing Agreement, and (c) is in the possession or under the
control of the Seller;
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provided that the Seller shall not be required to deliver any draft documents,
privileged or other communications or correspondence, credit underwriting or due
diligence analyses or information, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
the Pooling and Servicing Agreement, with regard to each Mortgage Loan that is
secured by the interests of the related Mortgagor in a hospitality property
(identified on Schedule VI to the Pooling and Servicing Agreement) and each
Mortgage Loan that has a related letter of credit, the Seller shall deliver to
and deposit with the Master Servicer, on or before the Closing Date, any related
franchise agreement, franchise comfort letter and the original of such letter of
credit. Further, in the event, with respect to a Mortgage Loan with a related
letter of credit, the Master Servicer determines that a draw under such letter
of credit has become necessary under the terms thereof prior to the assignment
of such letter of credit having been effected in accordance with Section 3.01(e)
of the Pooling and Servicing Agreement, the Seller shall, upon the written
direction of the Master Servicer, use its best efforts to make such draw or to
cause such draw to be made on behalf of the Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) hereof and provide
the Seller and the Controlling Class Representative and the Special Servicer
with a certificate (the "Master Servicer Certification") within 90 days of the
Closing Date acknowledging its (or the appropriate Sub-Servicer's) receipt as of
the date of the Master Servicer Certification of such documents actually
received (provided that such review shall be limited to identifying the document
received, the Mortgage Loan to which it purports to relate, that it appears
regular on its face and that it appears to have been executed (where
appropriate)). Notwithstanding anything to the contrary set forth herein, to the
extent the Seller has not been notified in writing of its failure to deliver any
document with respect to a Mortgage Loan required to be delivered pursuant to or
as contemplated by Section 2(e) hereof prior to the date occurring 18 months
following the date of the Master Servicer Certification, the Seller shall have
no obligation to provide such document.
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 duly organized or formed, as the case may be,
validly existing and in good standing as a legal entity under the laws of
the State of New York and possesses all requisite authority, power,
licenses, permits and franchises to carry on its business
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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 (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general, and
(B) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which the Seller is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound.
(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 organizational document or any other corporate
or limited liability company (as applicable) 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
and delivery of this Agreement by the Seller or the performance by the
Seller of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d) hereof, no consent, approval, authorization or
order of, registration or filing with, or notice to, 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; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of 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.
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(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
In addition, the Seller hereby further represents and warrants to, and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under statutory accounting principles and for federal income
tax purposes, the Seller will report the transfer of the Mortgage Loans to
the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
In connection with the foregoing, the Seller shall cause all of
its records to reflect such transfer as a sale (as opposed to a secured
loan). 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. After giving
effect to its transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their present
fair saleable value or at fair valuation, will exceed the amount of the
Seller's debts and obligations, including contingent and unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially all
of the assets of the Seller. The Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(ii) The Seller will acquire the Residual Interest Certificates
and the Unsold Certificates (as defined below) (the Residual Interest
Certificates and the Unsold Certificates are collectively referred to as
the "Seller Certificates"; and the Seller Certificates that constitute
Non-Registered Certificates are referred to as the "Non-Registered Seller
Certificates") for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in part,
in any manner that would violate the Securities Act or any applicable state
securities laws.
(iii) The Seller understands that (A) the Non-Registered Seller
Certificates have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state securities laws,
(B) neither the Purchaser nor any other party is obligated so to register
or qualify the Non-Registered Seller Certificates and (C) neither the
Non-Registered Seller Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is (1)
registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (2) sold or transferred
in a transaction which is exempt from such registration and qualification
and the Certificate Registrar has received the certifications and/or
opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Non-Registered Seller Certificates, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has or, as of the Closing Date,
will have carefully
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reviewed, and that the Non-Registered Seller Certificates will
bear legends that identify the transfer restrictions to which such
Non-Registered Seller Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any
Non-Registered Seller Certificate, any interest in a Non-Registered Seller
Certificate or any other similar security to any person in any manner, (B)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Non-Registered Seller Certificate, any interest in a
Non-Registered Seller Certificate or any other similar security from any
person in any manner, (C) otherwise approached or negotiated with respect
to any Non-Registered Seller Certificate, any interest in a Non-Registered
Seller Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general advertising
or in any other manner, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute a distribution of the Non-Registered Seller Certificates under
the Securities Act, would render the disposition of the
Non-Registered Seller Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of the Non-Registered Seller Certificates
pursuant thereto. The Seller will not act, nor has it authorized nor will
it authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Non-Registered Seller Certificates, any
interest in the Non-Registered Seller Certificates or any other similar
security.
(vi) The Seller has been furnished with all information regarding
(A) the Purchaser, (B) the Non-Registered Seller Certificates and
distributions thereon, (C) the Pooling and Servicing Agreement and the
Trust Fund, and (D) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or an entity in which all its
equity owners are "accredited investors" as defined in such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Non-Registered Seller Certificates. The Seller has sought such accounting,
legal and tax advice as it has considered necessary to make an informed
investment decision; and the Seller is able to bear the economic risks of
such an investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Non-Registered Seller Certificates on behalf of, as named
fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
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(c) The Seller intends to transfer the Residual Interest Certificates
to Merrill Lynch, Pierce, Fenner Smith Inc. on or about the Closing Date; and,
in connection therewith, the Seller will comply with all of the requirements of
Section 5.02 of the Pooling and Servicing Agreement, as in effect on the Closing
Date, and applicable law. The Seller hereby directs the Purchaser to cause the
Residual Interest Certificates to be registered in the name of Merrill Lynch,
Pierce, Fenner Smith Inc. upon initial issuance.
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:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. 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.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due authorization,
execution and delivery hereof by the Seller, constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general, and
(B) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree
or order to which the Purchaser is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or by which
the Purchaser is bound.
(iv) 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 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.
(v) 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 provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
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SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any Mortgage
Loan (i) that any document constituting a part of clauses (i) through (xix) of
the definition of Mortgage File has not been executed (if applicable) or is
missing (a "Document Defect") or (ii) of a breach of any of the Seller's
representations and warranties made pursuant to Section 3(b) hereof (each such
breach, a "Breach") relating to any Mortgage Loan, and such Document Defect or
Breach, as of the date specified in Section 5(b)(i) hereof, materially and
adversely affects the value of the Mortgage Loan, then such Document Defect
shall constitute a "Material Document Defect" or such Breach shall constitute a
"Material Breach", as the case may be. Then, following receipt by the Seller of
a Seller Notification with respect to such Material Document Defect or Material
Breach, as the case may be, the Seller shall (subject to Sections 5(f), (g) and
(h) hereof), (A) not later than (1) 90 days after the Seller and the Purchaser
have agreed upon the existence of such Material Document Defect or Material
Breach or (2) 60 days after an arbitration panel makes a binding determination,
in accordance with the provisions of Section 5(i) hereof, that a Material
Document Defect or Material Breach exists or (B) in the case of a Material
Document Defect or Material Breach that affects whether a Mortgage Loan was, as
of the Closing Date, is or will continue to be a "qualified mortgage" within the
meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days
following the discovery by any party of such Material Document Defect or
Material Breach (each such 90-day period referred to in clause (A)(1) above, or
such 60 day period referred to in clause (A)(2) above, or such 90 day period
referred to in clause (B) above, as applicable, is referred to as the "Initial
Resolution Period"): (i) cure such Material Document Defect or Material Breach,
as the case may be, in all material respects (which cure shall include payment
of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith), or (ii) if such Material Document Defect
or Material Breach, as the case may be, cannot be cured within the Initial
Resolution Period, repurchase the affected Mortgage Loan (or the related
Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (a) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(b) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the Initial Resolution Period (in the event the Seller and the
Purchaser have agreed upon the existence of such Material Document Defect or
Material Breach as described under clause (A)(1) above, or 45 days beyond the
end of the Initial Resolution Period (in the event an arbitration panel has made
a binding determination, as described under clause (A)(2) above, that a Material
Document Defect or Material Breach exists), then the Seller shall have such
additional 90-day period or 45-day period, as the case may be (each such period,
the "Resolution Extension Period"), to complete such cure or, failing such, to
repurchase the affected Mortgage Loan (or the related Mortgaged Property); and
provided, further, that, if any such Material Document Defect is still not cured
after the Initial Resolution Period and any such applicable Resolution Extension
Period solely
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due to the failure of the Seller to have received a recorded document, then the
Seller shall be entitled to continue to defer its cure and repurchase
obligations in respect of such Material Document Defect so long as the Seller
certifies to the Purchaser every six months thereafter that the Material
Document Defect is still in effect solely because of its failure to have
received the recorded document and that the Seller is diligently pursuing the
cure of such defect (specifying the actions being taken). The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
or otherwise nor possession of such certification or schedule by the Seller
shall, in and of itself, constitute delivery of notice of any Material Document
Defect or Material Breach or knowledge or awareness by the Seller of any
Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related Mortgagor under such Mortgage Loan, then, following receipt by the
Seller of a Seller Notification providing notice of such event, the Seller shall
cure the subject Material Document Defect within the time period specified in
such Seller Notification. If, upon the expiration of such period, the Seller has
failed to cure the subject Material Document Defect, the Master Servicer or the
Special Servicer, as applicable, shall be entitled (but not obligated) to
perform the obligations of the Seller with respect to curing the subject
Material Document Defect and, in the event of such an election, the Seller shall
pay all reasonable actual out-of-pocket costs and expenses in connection with
the applicable servicer's effecting such cure.
(b) Provided that any Seller Notification with respect to a Material
Document Defect or Material Breach is received by the Seller in accordance with
the provisions of the Pooling and Servicing Agreement, within 24 months of the
Closing Date, the material and adverse effect of the related Document Defect or
Breach shall be determined as of the date hereof. After the expiration of 24
months following the Closing Date, the material and adverse effect of any
Document Defect or Breach that was not the subject of another Seller
Notification received by the Seller (in accordance with the provisions of the
Pooling and Servicing Agreement) within 24 months of the Closing Date, shall be
determined as of the date of such Seller Notification.
In the event the Seller is obligated to repurchase any Mortgage Loan
pursuant to this Section 5, such obligation shall extend to any successor REO
Mortgage Loan with respect thereto as to which (A) the subject Material Breach
existed as to the subject predecessor Mortgage Loan prior to the date the
related Mortgaged Property became an REO Property or within 90 days thereafter,
and (B) as to which the Seller had received, no later than 90 days following the
date on which the related Mortgaged Property became an REO Property, a Seller
Notification from the Trustee regarding the occurrence of the applicable
Material Breach and directing the Seller to repurchase the subject Mortgage
Loan.
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a) hereof, then, prior to the subject repurchase, the Seller or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be
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repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, if such Cross-Collateralized Group is
still subject to the Pooling and Servicing Agreement, then no such termination
shall be effected unless and until (i) the Purchaser or its designee has
received from the Seller (A) an Opinion of Counsel to the effect that such
termination will not cause an Adverse REMIC Event to occur with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust
and (B) written confirmation from each Rating Agency that such termination will
not cause an Adverse Rating Event to occur with respect to any Class of
Certificates and (ii) the Controlling Class Representative (if one is acting)
has consented (which consent shall not be unreasonably withheld and shall be
deemed to have been given if no written objection is received by the Seller
within 10 Business Days of the Controlling Class Representative's receipt of a
written request for such consent); and provided, further, that the Seller may,
at its option, purchase the entire Cross-Collateralized Group in lieu of
terminating the cross-collateralization. All costs and expenses incurred by the
Purchaser or its designee pursuant to this paragraph shall be included in the
calculation of Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether the subject Breach or Document Defect, as the case may be,
materially and adversely affects the value of such Cross-Collateralized Group,
and (ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(d) It shall be a condition to any repurchase of a Mortgage Loan by
the Seller pursuant to this Section 5 that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller (or as otherwise required to be prepared, executed and delivered under
the Pooling and Servicing Agreement), in each case without recourse, as shall be
necessary to vest in the Seller (or its designee) the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto), to the extent
that such ownership interest was transferred to the Purchaser hereunder. If any
Mortgage Loan is to be repurchased as contemplated by this Section 5, the Seller
shall amend the Mortgage Loan Schedule to reflect the removal of such Mortgage
Loan and shall forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5 shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Breach or
Document Defect. It is understood and agreed that the obligations of the Seller
set forth in this Section 5 constitute the sole remedies available to the
Purchaser with respect to any Breach or Document Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of the
representation or warranty on the part of the Seller set forth in, or made
pursuant to, paragraph (41) of Exhibit B to this Agreement, then the Purchaser
or its designee will direct the Seller in writing to wire transfer to the
Custodial Account, within 90 days of receipt of such direction, the amount of
any such reasonable costs and expenses incurred by the Trust that (i) are due
from the Mortgagor, (ii) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (iii) have not been paid by the Mortgagor, (iv) are the basis of such
Breach and (v) constitute "Covered Costs". Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided
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that such payment is made, this paragraph describes the sole remedy available to
the Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances. Amounts
deposited in the Pool Custodial Account pursuant to this paragraph shall
constitute "Liquidation Proceeds" for all purposes of the Pooling and Servicing
Agreement (other than Section 3.11(c) of the Pooling and Servicing Agreement).
(g) Subject to Section 5(f) hereof and the last three sentences of
this paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (37) of Exhibit B to this Agreement) or
a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash amount equal
to the loss of value (each such payment, a "Loss of Value Payment") with respect
to such Mortgage Loan, which loss of value is directly attributed to such
Material Breach or Material Document Defect, as the case may be. The amount of
each such Loss of Value Payment shall be determined either (i) by mutual
agreement of the Special Servicer on behalf of the Trust with respect to the
subject Material Breach or Material Document Defect, as the case may be, and the
Seller, or (ii) by an arbitration panel pursuant to a binding arbitration
proceeding in accordance with Section 5(i) hereof; provided that, in the event
there is an arbitration proceeding for determining the existence of a Material
Breach or a Material Document Defect with respect to any Mortgage Loan, such
arbitration proceeding must also include a determination of the amount of the
loss of value to such Mortgage Loan directly attributed to such Material Breach
or such Material Document Defect, as the case may be. Provided that such payment
is made, this paragraph describes the sole remedy available to the Purchaser
regarding any such Material Breach or Material Document Defect and the Seller
shall not be obligated to otherwise cure such Material Breach or Material
Document Defect or repurchase the affected Mortgage Loan based on such Material
Breach or Material Document Defect under any circumstances. Notwithstanding the
foregoing provisions of this Section 5(g), if 95% or more of the loss of value
to a Mortgage Loan was caused by a Material Breach or Material Document Defect,
which Material Breach or Material Document Defect is not capable of being cured,
this Section 5(g) shall not apply and the Seller shall be obligated to
repurchase the affected Mortgage Loan at the applicable Purchase Price in
accordance with Section 5(a) hereof. Furthermore, the Seller shall not have the
option of delivering Loss of Value Payments in connection with any Material
Breach relating to a Mortgage Loan's failure to be a Qualified Mortgage. In the
event there is a Loss of Value Payment made by the Seller in accordance with
this Section 5(g), the amount of such Loss of Value Payment shall be deposited
into the Loss of Value Reserve Fund to be applied in accordance with Section
3.05(e) of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined by
an arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 5(i) hereof, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Mortgage Loan, including
reasonable legal fees) that are reasonably incurred in good faith by the Master
Servicer, the Special Servicer and/or the Trustee (on behalf of the Trust) in
enforcing the rights of the Trust against the Seller with respect to the subject
Material Breach or Material Document Defect, as the case may be; provided that,
in the event the Seller tenders a loss of value payment in a specified amount in
connection with a Material Breach or Material Document Defect, as the case may
be, prior to the institution of arbitration proceedings and that offer is
rejected and an amount equal to or less than the loss of value payment
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originally tendered by the Seller is ultimately determined by an arbitration
panel pursuant to a binding arbitration proceeding in accordance with Section
5(i) hereof to be the actual amount of the Loss of Value Payment attributed to
such Material Breach or Material Document Defect, as the case may be, then that
Loss of Value Payment shall not include the payment of any costs or expenses
incurred in enforcing the rights of the Trust against the Seller with respect to
the subject Material Breach or Material Document Defect, as the case may be;
provided, further, that if the Special Servicer request a loss of value payment
from the Seller of a specified amount in connection with a Material Breach or
Material Document Defect, as the case may be, and the Seller refuses to pay that
amount and an amount equal to or greater than the loss of value payment
originally requested by the Special Servicer is ultimately determined by an
arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 5(i) hereof to be the actual Loss of Value Payment attributable to
such Material Document Defect or Material Breach, then that Loss of Value
Payment shall also include the payment of any costs or expenses reasonably
incurred in good faith in enforcing the rights of the Trust against the Seller
with respect to the subject Material Breach or Material Document Defect, as the
case may be; and provided, further, that, if the Seller tenders a loss of value
payment in connection with a Material Breach or Material Document Defect, as the
case may be, in a specified amount, and the Special Servicer rejects such tender
and requests a greater loss of value payment amount, and an amount in between
the respective amounts tendered and requested is ultimately determined by an
arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 5(i) hereof to be the actual Loss of Value Payment attributable to
such Material Breach or Material Document Defect, as the case may be, then that
Loss of Value Payment shall also include the payment of an amount equal to the
product of (i) all costs and expenses reasonably incurred in connection with
that arbitration proceeding, multiplied by (ii) a fraction, the numerator of
which is the excess of the amount determined by that arbitration proceeding over
the amount tendered by the Seller, and the denominator of which is the excess of
the amount requested by the Special Servicer over the amount tendered by the
Seller. Notwithstanding the foregoing, in the event any Loss of Value Payment is
determined by the parties hereto by mutual agreement (and not by an arbitration
proceeding), that Loss of Value Payment shall not include any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee unless such
costs and expenses were specifically included in such mutual agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (37) of Exhibit B to this Agreement, and the subject
Mortgage Loan becomes a Qualified Mortgage prior to the expiration of the
Initial Resolution Period applicable to a Material Document Defect or Material
Breach that affects whether a Mortgage Loan is a Qualified Mortgage, and without
otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust Event, then
such breach will be cured and the Seller will not be obligated to repurchase or
otherwise remedy such Breach.
(i) The parties hereto agree that any controversy or claim (a
"Dispute") arising under Section 5(a), Section 5(b) and/or Section 5(g) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures in this Section 5(i).
If the Seller receives a Seller Notification pursuant to Section 5(a)
of this Agreement regarding the alleged existence of a Material Document Defect
or Material Breach and requesting the Seller to cure or repurchase the affected
Mortgage Loan in connection therewith (a "Notice"), and the Seller does not
agree upon the existence of such Material Document Defect or Material Breach
within 90 days of receiving such Notice, then, unless otherwise agreed to by the
parties involved in the Dispute,
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that Dispute shall be submitted to non-binding mediation in accordance with the
provisions of this paragraph; provided, that if the Seller is proceeding to cure
the subject Material Document Defect or Material Breach, then that Dispute shall
not be submitted to mediation until the expiration of the related Resolution
Extension Period and the failure of the Seller to complete such cure (unless
otherwise agreed to by the parties involved in the Dispute). Following the
90-day period referred to in the preceding sentence and subject to the preceding
proviso, either party to this Agreement that is involved in the Dispute may send
a written letter (a "Mediation Letter") to the other party to this Agreement
that it wishes the mediation process to begin between the sender and the
recipient of such Mediation Letter. Following receipt of a Mediation Letter, a
mediator(s) shall be selected by agreement of the parties to the mediation. If
such parties cannot agree on a mediator, then the mediation shall be conducted
by three mediators, one of which shall be selected by the Seller and one of
which shall be selected by the Purchaser or its assignee. Each of the parties to
the mediation shall submit the name of the person it has selected to serve as a
mediator to the opposing party within 10 days of the date of the Mediation
Letter. If either party fails to submit the name of its selected mediator within
10 days of the date of the Mediation Letter, the other party shall have the
right to select the second mediator in addition to its own mediator (provided
that such party has submitted the name of its selected mediator within 10 days
of the date of the Mediation Letter). The two mediators selected by the
party(ies) shall appoint a third mediator within 20 days of the date of the
Mediation Letter or such longer time period as agreed to by the parties to the
mediation. Any mediator(s) so designated must be acceptable to both the Seller
and the Purchaser or its assignee. Any mediators appointed or selected pursuant
to the provisions of this paragraph must be experienced professionals in the
CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90 days of the
date of the Mediation Letter (or a longer period, if the parties to the
mediation agreed to extend the mediation). Any mediation referred to in this
Section 5(i) shall be conducted in the manner specified by the mediator(s) and
agreed upon by the Seller and the Purchaser or its assignee and any such
mediation shall be conducted in New York City to the exclusion of all other
locations (unless otherwise agreed to by the parties to the mediation). During
the mediation process, the parties to the mediation shall discuss their
differences voluntarily and in good faith and attempt, with the assistance of
the mediator(s) as a facilitator of the negotiations, to reach an amicable
resolution of the Dispute. The mediation will be treated as a settlement
discussion and therefore will be confidential. No mediator selected in
accordance with this Section 5(i) may testify for either party in any later
proceeding relating to the Dispute. No recording or transcript shall be made of
the mediation proceedings. The fees and expenses of all mediator(s) shall be
shared equally by the parties to the mediation; provided, that the party to the
mediation that is acting on behalf of the Trust in accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement or
indemnification by the Trust Fund for such fees and expenses if and to the
extent permitted under the Pooling and Servicing Agreement.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and no decision
or resolution of a mediator or mediators shall be binding on any party unless
such decision or resolution is expressly agreed to by such party. In the event
the parties involved in the Dispute have not agreed to a Dispute resolution
pursuant to mediation at the termination of the mediation, then that Dispute
will be settled by arbitration in accordance with the succeeding paragraphs of
this Section 5(i).
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If a Dispute has not been resolved within 90 days of the date of the
Mediation Letter (or such shorter or longer period as is expressly agreed to by
the parties to the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration. Following the date of termination of mediation,
which shall be the date occurring 90 days after the date of the Mediation Letter
unless otherwise expressly agreed to by the parties to the mediation,
arbitration may be commenced by either party to this Agreement involved in the
Dispute sending a written notice to the other party to this Agreement involved
in the Dispute that it wishes the arbitration process to begin with respect to
the Dispute between the sender and the recipient of such written notice. The
date any such party receives written notice in accordance with this Section 5(i)
from another party that such party wishes to commence arbitration shall be
referred to as the "Arbitration Commencement Date". Any arbitration hereunder
shall be conducted in accordance with the provisions of this Agreement and the
American Arbitration Association Rules for Large Complex Commercial Disputes
("AAA Rules"), but shall not be conducted by the American Arbitration
Association ("AAA"). Discovery will be permitted in connection with the
arbitration in accordance with the AAA Rules. In the event of a conflict, the
provisions of this Agreement will control. Such arbitration shall be conducted
before a panel of three arbitrators, regardless of the size of the Dispute. The
arbitration panel shall consist of one person selected by the Seller and one
person selected by the Purchaser or its assignee. Each such party shall submit
the name of the person it has selected to serve as an arbitrator to the other
party within 30 days of the Arbitration Commencement Date (or such longer period
as is expressly agreed to by the parties to the arbitration). If either such
party fails to submit the name of its selected arbitrator within 30 days of the
Arbitration Commencement Date, then the other such party shall have the right to
select the second arbitrator in addition to its own arbitrator (provided that
such party has submitted the name of its selected arbitrator within 30 days of
the Arbitration Commencement Date). The two arbitrators designated in accordance
with the two preceding sentences shall appoint a third arbitrator within 45 days
of the Arbitration Commencement Date (or such longer period as is expressly
agreed to by the parties to the arbitration). All arbitrators appointed or
selected pursuant to the provisions of this paragraph must be experienced
professionals in the CMBS industry. The third arbitrator shall be an Independent
person who has not previously been employed by either party and does not have a
direct or indirect interest in either party or the subject matter of the
arbitration. The two (2) arbitrators appointed by the parties to the arbitration
are not required to be neutral and it shall not be grounds for removal of either
of such arbitrators or for vacating an arbitration award that either of such
arbitrators has past or present relationships with the party that appointed such
arbitrator. No potential arbitrator may serve on the panel unless he or she has
agreed in writing to abide and be bound by the terms and provisions of this
Agreement and the AAA Rules and to keep confidential the terms of any
arbitration proceeding related to this Agreement and the terms of any
discussion, negotiation, decision, agreement or resolution in connection
therewith.
Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be resolved by the arbitrators.
In no event, notwithstanding that any provision of this Agreement is held to be
invalid or unenforceable, shall the arbitrators have the power to make an award
or impose a remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. In no event shall the arbitrators have the
power to make an award or impose a remedy that is not contemplated by, or
conflicts with the terms and provisions of, this Agreement or the Pooling and
Servicing Agreement (other than any term or provision of this Agreement or the
Pooling and Servicing Agreement that is held to be invalid or unenforceable).
Without limiting the foregoing, the arbitrators shall have no authority to
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award treble, consequential or punitive damages of any type under any
circumstances, whether or not such damages may be available under the AAA Rules
or any other act or law. Subject to the provisions of this Agreement, the result
of the arbitration will be binding on the parties involved in the Dispute, and
judgment on the arbitrators' award may be entered, subject to the provisions of
Section 15 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City to
the exclusion of all other locations (unless otherwise expressly agreed to by
the parties to the subject mediation or arbitration, as applicable). The party
to an arbitration that is acting on behalf of the Trust in accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement or
indemnification by the Trust Fund for the fees and expenses incurred in
connection therewith if and to the extent permitted under the Pooling and
Servicing Agreement.
The parties to this Agreement hereby agree to waive any right to trial
by jury fully to the extent that any such right shall now or hereafter exist
with regard to the rights and remedies contained in this Section 5; provided,
that if (i) any party to an arbitration governed by this Section 5(i) fails to
abide by the rules or deadlines for that arbitration (as such deadlines may be
extended by express agreement of the parties to that arbitration), or (ii) the
applicable appointed arbitrators determine that the subject Dispute cannot be
resolved through arbitration either because the AAA Rules are inapplicable to
the Dispute and/or the Federal Arbitration Act is inapplicable to the Dispute or
for any other reason, then the other party (in the case of clause (i)) or either
party (in the case of clause (ii)) to this Agreement may in its sole option,
file a complaint to resolve the Dispute through a legal proceeding and in
accordance with the provision contained in Section 15 hereof.
SECTION 6. [RESERVED]
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Thacher Proffitt & Wood, LLP, Two World Financial Center,
New York, New York 10281 at 10:00 a.m., New York City time, 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) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to
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the Trustee, the Master Servicer and the Special Servicer, respectively,
pursuant to Section 2 of this Agreement;
(e) 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;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto 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 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the initial Purchaser,
the Underwriters and the Placement Agent may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement and in the
Indemnification 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;
(e) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, dated the Closing Date, and upon which the initial
Purchaser, the Underwriters and the Placement Agent may rely, to the effect that
each individual who, as an officer or representative of the Seller signed this
Agreement, the Indemnification Agreement or any other document or certificate
delivered on or before the Closing Date in connection with the transactions
contemplated herein or in the Indemnification Agreement, 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;
(f) As certified by an officer of the Seller, true and correct copies
of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller,
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and (iii) a certificate of good standing of the Seller, issued by the Secretary
of State of the State of New York not earlier than 30 days prior to the Closing
Date;
(g) A favorable opinion of Dechert LLP ("Dechert"), special counsel to
the Seller, substantially in the form attached hereto as Exhibit C-1, dated the
Closing Date and addressed to the initial Purchaser, the Underwriters, the
Placement Agent, the Rating Agencies and, upon request, the other parties to the
Pooling and Servicing Agreement, together with such other opinions of Dechert as
may be required by the Rating Agencies in connection with the transactions
contemplated hereby;
(h) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, delivered in connection with the opinion of Dechert to
be delivered pursuant to Section 8(g) hereof, in form and substance satisfactory
to the addressees of such opinion and upon which such addressees may rely;
(i) In connection with the initial issuance of the Residual Interest
Certificates, a Transfer Affidavit and Agreement in the form contemplated by the
Pooling and Servicing Agreement from Seller and from the transferee of the
Seller;
(j) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding origination of the
Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended;
(k) Such further certificates, opinions and documents as the Purchaser
may reasonably request; and
(l) A favorable opinion of in house counsel to the Seller,
substantially in the form attached hereto as Exhibit C-2, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agent,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement.
SECTION 9. Costs.
All reasonable out-of-pocket costs and expenses incurred by the
Seller, the initial Purchaser, the Underwriters and the Placement Agent in
connection with the securitization of the Mortgage Loans and the other
transactions contemplated by this Agreement, the Underwriting Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Purchase of Unsold Certificates.
Anything to the contrary set forth herein, if and to the extent any
class of Certificates or portion thereof remains unsold to independent
third-party investors unaffiliated with the Purchaser as of the Closing Date, as
determined in the sole discretion of Lehman or its affiliates (such unsold
Certificates collectively, the "Unsold Certificates"), such Unsold Certificates
shall be purchased by the Seller from Lehman on the Closing Date, in the manner
and in accordance with the terms and conditions set forth in the Underwriting
Agreement and
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the Certificate Purchase Agreement, respectively. Lehman and the Seller hereby
agree that any amounts due under Section 2 hereof from the Purchaser to the
Seller may be offset against amounts due from the Seller to Lehman under the
Underwriting Agreement and the Certificate Purchase Agreement, respectively. In
addition, the Seller hereby agrees that if and to the extent that the Seller
and/or any affiliate thereof proposes to sell or transfer any of the Unsold
Certificates in any other manner not contemplated under the registration
statement of the Depositor (as amended or supplemented to the date hereof)
related to the TIAA Seasoned Commercial Mortgage Trust 2007-C4, then the Seller
shall provide the Purchaser with reasonable prior written notice (but not less
than 5 Business Days notice) of such intention and shall cooperate with the
Purchaser and its affiliates in the preparation, distribution and/or filing
(with the Securities and Exchange Commission and/or otherwise as part of the
Depositor's registration statement) of any disclosure or other document deemed
necessary or advisable by the Purchaser, in its sole discretion, in connection
with such proposed sale or transfer of the Unsold Certificates.
SECTION 11. Grant of a Security Interest.
The parties hereto agree that it is their express intent 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 it is the express intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller; (ii) this Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (iii)
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; (iv) the assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage Loans shall be
deemed to be an assignment of any security interest created hereunder; (v) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, 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
applicable Uniform Commercial Code; and (vi) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from such persons 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; and, in connection with the foregoing, the
Seller authorizes the Purchaser to file any and all appropriate Uniform
Commercial Code financing statements.
SECTION 12. 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
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Notices" specified beneath its name on the signature pages hereof or, as to any
party, at such other address as shall be designated by such party in a notice
hereunder to the other parties. 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 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller 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 initial Purchaser to the Trustee).
SECTION 14. 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 15. 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 16. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW AND SUBJECT TO SECTION 5(i) HEREOF, THE SELLER AND THE PURCHASER
EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF ALL OTHER
COURTS, WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OTHER THAN MATTERS TO BE SETTLED BY MEDIATION OR ARBITRATION IN ACCORDANCE WITH
SECTION 5(i) HEREOF; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH SUCH
ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK
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STATE OR FEDERAL COURTS; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW;
PROVIDED, THAT IN THE EVENT SECTION 5(i) HEREOF IS INAPPLICABLE AND BOTH A NEW
YORK STATE AND A FEDERAL COURT SITTING IN NEW YORK IN WHICH AN ACTION OR
PROCEEDING HAS BEEN DULY AND PROPERLY COMMENCED BY ANY PARTY TO THIS AGREEMENT
REGARDING A MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT HAS REFUSED TO
ACCEPT JURISDICTION OVER OR OTHERWISE HAS NOT ACCEPTED SUCH ACTION OR PROCEEDING
WITHIN, IN THE CASE OF EACH SUCH COURT, 60 DAYS OF THE COMMENCEMENT OR FILING
THEREOF, THEN THE WORDS "TO THE EXCLUSION OF ALL OTHER COURTS" IN CLAUSE (I) AND
CLAUSE (II) OF THIS SENTENCE SHALL NOT APPLY WITH REGARD TO SUCH ACTION OR
PROCEEDING AND THE REFERENCE TO "SHALL" IN CLAUSE (II) OF THIS SECTION SHALL BE
DEEMED TO BE "MAY".
SECTION 17. Further Assurances.
The Seller and the Purchaser each agrees to execute and deliver such
instruments and take such further actions as any other such 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, and their respective successors
and permitted assigns.
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 against whom such waiver or modification is sought to be
enforced. The Seller's obligations hereunder shall in no way be expanded,
changed or otherwise affected by any amendment of or modification to the Pooling
and Servicing Agreement, unless the Seller has consented to such amendment or
modification in writing.
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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
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Rosemarie J. Wagner
------------------------------------
Name: Rosemarie J. Wagner
Title: Director
Address for Notices:
8500 Andrew Carnegie Blvd.
Charlotte, NC 28262
Attention: Jack Gay
Telecopier No.: (704) 988-4917
PURCHASER
STRUCTURED ASSET SECURITIES
CORPORATION II
By: /s/ David Nass
------------------------------------
Name: David Nass
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
745 Seventh Avenue
New York, New York 10019
Attention: Scott Lechner
Telecopier No.: (646) 758-4203
Confirmed and accepted as of the date first above written, solely for purposes
of Section 10:
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LEHMAN BROTHERS INC.
By: /s/ Charlene Thomas
----------------------------------
Name: Charlene Thomas
Title: Senior Vice President
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
(SEE ATTACHED)
Exh. A-1
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TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
MORTGAGE LOAN SCHEDULE
CONTROL GROUP
NO. NO. PROPERTY NAME ADDRESS
----------------------------------------------------------------------------------------------------------------------
1 1 1000/Fox Portfolio Various
1A 1 Fox Tower 805 SW Broadway
1B 1 1000 Broadway 1000 SW Broadway Avenue
2 1 Algonquin Commons Portfolio 1520 Randall Road
2A 1 Algonquin Commons Phase I 1520 Randall Road
----------------------------------------------------------------------------------------------------------------------
2B 1 Algonquin Commons Phase II 1520 Randall Road
3 1 Sammamish Parkplace 21925,21933,21930 SE 51st Street
4 1 Pinnacle Towers 1751-1753 Pinnacle Drive
5 1 Airtouch Spectrum Campus 1505 Sand Canyon Avenue
6 1 One Convention Place 701 Pike Street
----------------------------------------------------------------------------------------------------------------------
7 1 Regency Portfolio Various
7A 1 Regency West VII & VIII O.B. 4400 & 4350 Westown Parkway
7B 1 Regency West V & VI Off/Bldg 4500 & 4600 Westown Parkway
7C 1 Regency West 4 4700 Westown Parkway
7D 1 Regency West 3 4800 Westown Parkway
----------------------------------------------------------------------------------------------------------------------
7E 1 Regency West 1 50th & Westown Parkway
7F 1 Regency West 2 1401 50th St.
8 1 University Commons Shopping Cntr 1400 Glades Road
9 1 Concord Airport Plaza 1200 & 1220 Concord Avenue, 2200 John Glenn Drive
10 1 Quincy Street Station 4001 North Fairfax Drive
----------------------------------------------------------------------------------------------------------------------
11 1 US Bank Plaza 101 South Capitol Blvd.
12 1 Specialty Laboratories 27027 Tourney Point Road
13 1 Key West Corp. Cntr. II, III & IV 9410, 9420 & 9430 Key West Ave
14 1 Tiffany Plaza Retail Center 7300-7800 East Hampden Ave
15 1 Centrum At Crossroads Shop.Ctr. 2416 Walnut Street
----------------------------------------------------------------------------------------------------------------------
16 1 Patriot Business Park Portfolio Various
16A 1 Patriot Business Park - East 7852 Walker Drive
16B 1 Patriot Business Park West 7850 Walker Road
17 1 Franklin Farm Village 13300 - 13360 Franklin Farm Rd
18 1 Fairway Plaza II 5542-5692 Fairmont Parkway
----------------------------------------------------------------------------------------------------------------------
19 1 Crossroads Commons Retail SC 8825-8975 W. Charleston Blvd
20 1 Wheatley Plaza S/E/C Northern Blvd. & Glen Clove Road
21 1 Colonnade At Union Mill 5740 Union Mill Road
22 1 North Hills Industrial Park 16689, 16715 Schoenborn Street
23 1 Charles County Shopping Center 3215 Plaza Way
----------------------------------------------------------------------------------------------------------------------
24 1 Linda Mar Shopping Center 576 Linda Mar Boulevard
25 1 Webster Square 260 Daniel Webster Highway
26 1 Wilton Connor Packaging Dist Center 3700 Display Drive
27 1 Snellville Pavilion Shpg. 2059 Scenic Highway
28 1 Alton Corporate Center 16205,16215,16225 Alton Pkwy.
----------------------------------------------------------------------------------------------------------------------
29 1 Dulles Business Park 3750, 3863, 3855, 3859 Centerview Drive
30 2 Harbor Point Apartments 2 Harbor Point Drive
31 1 Shoppes At Dilworthtown Crossing Route 202 And Dilworthtown Road
32 1 Shops At Monocacy 1700 Kingfisher Drive
33 1 2200 Renaissance 2200 Renaissance Blvd
----------------------------------------------------------------------------------------------------------------------
34 1 Plaza In The Park 5150 Buffalo Speedway
35 1 15 Exchange Place Office 15 Exchange Place
36 1 Kyrene Commerce Plex 8240-8410 South Kyrene Rd
37 1 Market Place And New Market Portfolio Various
37A 1 New Market Square 2727 S Church Street
----------------------------------------------------------------------------------------------------------------------
37B 1 Marketplace On Harden Shopping Center 1001 Harden Street
38 1 Muddy Branch 800 Muddy Branch Square
39 1 Mirasol Walk Shopping Cntr. 6249 Pga Blvd
40 1 Olympia Plaza 3870, 3880, 3890 Murphy Canyon Road
41 1 The Bergman Office Portfolio Various
----------------------------------------------------------------------------------------------------------------------
41.01 1 One Kalisa Way One Kalisa Way
41.02 1 299 Market Street 299 Market Street
41.03 1 25 East Spring Valley Avenue 25 East Spring Valley Avenue
42 1 Colony Place Shopping Center 7741 Colony Road
43 1 Whitehall Crossing Shopping Center 100 -280 North Gates Drive
----------------------------------------------------------------------------------------------------------------------
44 2 Highland House Apartments 5480 Wisconsin Ave
45 1 Westminster Crossing West Shopping Cntr 400 Englar Rd
46 1 Pinnacle Peak Commerceplex I 23910 N. 19th Avenue
47 1 Henderson Beltway Office Center 140, 160 & 170 N Stephanie Street
48 1 Radcliffe At Towson 1012 York Road
----------------------------------------------------------------------------------------------------------------------
49 1 Novato Fair Shopping Center 900-946 Diablo Avenue And 7135-7145 Redwood Boulevard
50 1 Westfield Village Shopping Center Store#2160 9349-9369 Sheridan Blvd.
51 1 Pottery/Tiffany/ Legg Portfolio Various
51A 1 Tiffany Building 40-44 Post Road
51B 1 Pottery Barn Building 27 Main Street
----------------------------------------------------------------------------------------------------------------------
51C 1 Legg Mason Building 138-142 Central Ave
52 1 Capital Office V 6404 Ivy Lane
53 1 Craig Lamb Distribution Center 4200 & 4300 Flossmoor St
54 1 600 University Park Place 600 University Park Place
55 1 Boca Valley Plaza Shopping Center 7401 N Federal Highway
----------------------------------------------------------------------------------------------------------------------
56 1 Milwaukee Whole Foods 2305 North Prospect Avenue
57 2 Entrada Apartments 1325 Island Avenue
58 1 711 Westchester Avenue 711 Westchester Avenue
59 1 Clayton Corporate Park 700 Corporate Park Drive
60 1 Manokeek Village Center Sec Of Indian Highway & Berry Road
----------------------------------------------------------------------------------------------------------------------
61 1 Huntington Millennium Center 181 West Huntington Drive
62 2 Broadway Plaza Apartments 700 Broadway Avenue East
63 1 Prospect Park Portfolio Various
63A 1 Prospect Park - Bldg B 11020 Sun Center Drive
63B 1 Prospect Park - Bldg. A 29269 Prospect Park Drive
----------------------------------------------------------------------------------------------------------------------
64 1 2750 Monroe Blvd. (Quest) 2750 Monroe Boulevard
65 1 Springfield Office Center 6564 Loisdale Court
66 1 Loehmann's Plaza 5200-5290 Randolph Road
67 1 Mesa Vista Business Center 2955 W. Mesa Vista Ave. And 3950 W. Diablo Dr.
68 1 North Utica Shopping Center 50 Auert Avenue
----------------------------------------------------------------------------------------------------------------------
69 1 660 Pennsylvania Avenue Retail/Office 660 & 656 Pennsylvania Ave And 325-327 7Th Street, Se
70 1 Seven Square Corporate Park Portfolio Various
70A 1 Seven Square Corporate Park 9110 9110 Philadelphia Rd
70B 1 Seven Square Corporate Park 6820 Hospital Drive
71 1 Burke Town Plaza 9582 Old Keene Mill Rd
----------------------------------------------------------------------------------------------------------------------
72 1 Mcdowell Mountain Marketplace 10111 East Bell Rd
73 1 Warm Springs Business Center I & II 7140, 7180, 7220 And 7260 Industrial Road
74 1 Fountain Plaza One Condominium 701 Town Center Drive
75 1 Rain & Hail Headquarter Bldg 9200 Northpark Drive
76 1 Pinnacle Peak 2 23610 & 23620 North 20th Drive
----------------------------------------------------------------------------------------------------------------------
77 1 San Gabriel Medical Plaza Office 207 South Santa Anita Street
78 1 Meadows Shopping Center 1540 N.W. Gilman Blvd.
79 1 Spencer & Helm Business Center(EJM) 1650 & 1660 Helm Drive And 6672 Spencer Street
80 1 Homewood Suites Hotel 350 Rocky Run Parkway
81 1 Arrowhead Commerce Center 13&14 3655 E Patrick Lane 6180 S. Pearl Street
----------------------------------------------------------------------------------------------------------------------
82 2 Lakes At Woodmont Apartments 10100 Desmond Place
83 1 Ventana Lakes Village Center 20283, 20351, 20403, 20255 North Lake Pleasant Road
84 2 Fountain Villas Apartments 1001 Cascade Circle
85 2 The Woodlands Apartments 1000 Kenwood Court
86 1 Bay Pointe Space Center 2323 Clear Lake City Blvd
----------------------------------------------------------------------------------------------------------------------
87 1 Publix At Westchase 12139 W Linebaugh Ave
88 1 Shoppes Of Williston Road 5200 SW 34th Street
89 1 Northport/Gunn Portfolio Various
89A 1 Northport VII & VIII 8506 & 8508 Benjamin Road
89B 1 Gunn Collection Retail Center 5632 Gunn Highway
----------------------------------------------------------------------------------------------------------------------
90 1 Belle Hall Shopping Center I 620-636 Long Point Road
91 1 Sierra Health Services 4475 South Eastern Avenue
92 1 Arrowhead Commerce Center 6275 & 6255 South Sandhill Rd
93 1 Seven Lebanon Street 7 Lebanon Street
94 2 Yale Village Apartments 1699 Yale Place
----------------------------------------------------------------------------------------------------------------------
95 1 Baymeadows Business Center 8226 Phillips Highway
96 1 Cinco Ranch 22010-22140 Westheimer Parkway
97 1 Cruse Market Place Neq Buford Highway (Georgia Highway 20) and Samples Road
98 1 1600 Manor Drive 1600 Manor Drive
99 1 Southpoint Center 4125 9th Street SW
----------------------------------------------------------------------------------------------------------------------
100 1 75th & I-10 Commerceplex 7310 West Roosevelt St
101 1 Chaparral Plaza Retail Center 7908 East Chaparral Rd
102 1 Champion Forest CVS Center 5603 F.M. 1960 West
103 1 Village Commons At Wesley Chapel 5920 Weddington Monroe Road
104 1 St Cloud West Publix Shopping Center 4401-4437 13th Street
----------------------------------------------------------------------------------------------------------------------
105 1 Arrowhead Buildings 11 & 12 6275 & 6295 S. Pearl St.
106 2 The Boulevard Apartments 2440 N Boulevard
107 1 The Cascades At Isleworth 4848- 4876 S. Apolka Vineland Road
108 1 Pinnacle Peak Commerceplex 3 23616 & 23606 North 19th Ave
109 1 Commerce Office Center 5200 Commerce Crossings Drive Center
----------------------------------------------------------------------------------------------------------------------
110 1 Causeway Corporate Centre 1800 SE 10Th Avenue
111 1 Northgate Square Shopping Center 3939 Van Dyke Road
112 1 Rivergate Plaza 1101-93 SE Port St Lucie Blvd
113 1 South Shore Harbour Shopping Center 2951 Marina Bay Drive
114 1 Lyons Corporate Park 6601 Lyons Road
----------------------------------------------------------------------------------------------------------------------
115 1 Fairview Corporate Center 600 South 56th Street
116 1 Ravenstone Village Shopping Center 121 Sherron Road
117 1 New Market Plaza 980 South Main Street
118 2 900 West 23rd Street Apartments 900 West 23rd Street
119 1 Arrowhead Building 15 3650 East Post Road
----------------------------------------------------------------------------------------------------------------------
120 1 8 Essex Center Drive 8 Essex Center Drive
121 1 Sea Island Shopping Center 1220 Ben Sawyer Boulevard
122 1 Craig & Lamb Distribution Ctr - Bldg A 4390 Flossmoor Street
123 2 Partridge Hill Apartments 5 Valley View Blvd
124 1 Montgomery Airpark Business Park 19200 &7600-20 Chennault Way Rickenbacker Drive
----------------------------------------------------------------------------------------------------------------------
125 1 Holly Portfolio Various
125A 1 Holly IV 44421 Airport Road
125B 1 Holly I 44425 Airport Road
126 1 Sav On Drugs 155 Pacific Coast Hwy
127 1 20410 Century Boulevard 20410 Century Blvd
----------------------------------------------------------------------------------------------------------------------
128 1 Columbia II Industrial Building 9475 Gerwig Lane
129 1 Blue Diamond Business Cntr-Bldg 1 8050 Arville Street
130 1 Global Motorsport 5855 Carbonmill Dr
131 1 Columbia III Industrial Building 9520 Gerwig Lane
132 1 Fishers Lane Commerce Center 5609 Fishers Lane
----------------------------------------------------------------------------------------------------------------------
133 1 Chart House Inc. 2700 Stemmons Complex
INITIAL MORTGAGE MONTHLY REMAINING MATURITY OR
CONTROL POOL BALANCE DEBT MORTGAGE TERM TO ANTICIPATED
NO. CITY STATE ZIP ($) SERVICE ($) RATE (%) MATURITY (MOS.) REPAYMENT DATE
-----------------------------------------------------------------------------------------------------------------------------
1 Portland OR 97205 120,433,338 950,023.81 8.10625 42 Various
1A Portland OR 97205 91,254,536 718,556.64 8.19167 47 6/1/2011
1B Portland OR 97205 29,178,803 231,467.17 7.85000 27 10/1/2009
2 Algonquin IL 60102 95,880,566 559,990.66 5.40512 88 11/1/2014
2A Algonquin IL 60102 75,390,383 442,497.41 5.45000 88 11/1/2014
-----------------------------------------------------------------------------------------------------------------------------
2B Algonquin IL 60102 20,490,183 117,493.25 5.24000 88 11/1/2014
3 Issaquah WA 98029 87,519,932 535,133.33 5.72000 102 1/1/2016
4 Mclean VA 22102 61,516,439 357,301.58 5.20000 75 10/1/2013
5 Irvine CA 92618 60,036,328 627,824.28 8.09000 45 4/13/2011
6 Seattle WA 98101 54,300,000 248,422.50 5.49000 75 10/1/2013
-----------------------------------------------------------------------------------------------------------------------------
7 West Des Moines IA 50266 43,306,612 310,855.54 7.25000 77 12/1/2013
7A West Des Moines IA 50266 13,821,612 99,211.75 7.25000 77 12/1/2013
7B West Des Moines IA 50266 11,564,636 83,011.15 7.25000 77 12/1/2013
7C West Des Moines IA 50266 5,682,737 40,790.78 7.25000 77 12/1/2013
7D West Des Moines IA 50266 4,523,763 32,471.64 7.25000 77 12/1/2013
-----------------------------------------------------------------------------------------------------------------------------
7E West Des Moines IA 50266 3,856,932 27,685.11 7.25000 77 12/1/2013
7F West Des Moines IA 50266 3,856,932 27,685.11 7.25000 77 12/1/2013
8 Boca Raton FL 33431 38,000,000 215,759.82 5.50000 162 1/10/2021
9 Concord CA 94520 37,947,396 302,227.25 7.20000 54 1/1/2012
10 Arlington VA 22203 32,861,719 198,846.17 5.77000 54 1/1/2012
-----------------------------------------------------------------------------------------------------------------------------
11 Boise ID 83702 29,771,104 175,791.94 5.55585 84 7/1/2014
12 Santa Clarita CA 91355 28,200,000 111,625.00 4.75000 27 10/1/2009
13 Rockville MD 20850 25,291,440 145,025.72 5.34000 97 8/10/2015
14 Denver CO 80231 24,448,216 140,382.70 5.40000 101 12/10/2015
15 Cary NC 27511 23,198,144 170,868.33 7.34000 51 10/10/2011
-----------------------------------------------------------------------------------------------------------------------------
16 Greenbelt MD 20770 22,806,623 142,256.54 6.13000 95 6/10/2015
16A Greenbelt MD 20770 11,473,937 71,128.27 6.13000 95 6/10/2015
16B Greenbelt MD 20770 11,332,686 71,128.27 6.13000 95 6/10/2015
17 Herndon VA 20171 22,450,000 110,940.42 5.93000 89 12/10/2014
18 Pasadena TX 77505 21,976,707 160,142.95 7.38000 63 10/10/2012
-----------------------------------------------------------------------------------------------------------------------------
19 Las Vegas NV 89117 20,682,110 155,349.35 5.02000 195 10/10/2023
20 Greenvale NY 10158 20,621,762 171,729.57 8.63000 38 9/1/2010
21 Clifton VA 20124 20,600,000 90,260.83 5.25791 85 8/10/2014
22 North Hills CA 91343 20,582,064 160,408.05 6.05000 87 10/10/2014
23 Waldorf MD 20602 20,218,799 114,924.41 5.17000 90 1/10/2015
-----------------------------------------------------------------------------------------------------------------------------
24 Pacifica CA 94044 20,152,489 115,385.32 5.43000 82 5/10/2014
25 Nashua NH 03060 19,983,839 113,051.20 5.33001 83 6/10/2014
26 Charlotte NC 28273 19,708,512 113,934.11 5.44000 39 10/10/2010
27 Snellville GA 30078 19,305,174 146,727.72 7.69000 50 9/10/2011
28 Irvine CA 92618 18,932,663 158,474.22 6.72000 17 12/1/2008
-----------------------------------------------------------------------------------------------------------------------------
29 Chantilly VA 22151 18,873,937 131,268.40 6.85985 61 8/10/2012
30 Mill Valley CA 94941 18,000,000 84,900.00 5.66000 98 9/1/2015
31 Birmingham And Thornbury PA 19382 17,950,717 127,942.83 7.12000 62 9/1/2012
32 Frederick MD 21701 17,775,997 112,027.34 5.22000 150 1/10/2020
33 King Of Prussia PA 19046 17,601,699 117,280.37 5.84000 65 12/1/2012
-----------------------------------------------------------------------------------------------------------------------------
34 Houston TX 77005 17,367,716 105,802.76 5.60000 72 7/10/2013
35 Jersey City NJ 07320 17,127,806 112,913.06 5.72000 78 1/10/2014
36 Tempe AZ 85284 16,497,615 115,551.39 6.90000 60 7/10/2012
37 Various Various Various 16,156,686 92,182.49 5.38412 101 12/10/2015
37A Burlington NC 27215 9,000,000 51,352.17 5.42000 101 12/10/2015
-----------------------------------------------------------------------------------------------------------------------------
37B Columbia SC 29205 7,156,686 40,830.32 5.34000 101 12/10/2015
38 Gaithersburg MD 20878 16,150,000 70,637.50 5.24861 85 8/10/2014
39 Palm Beach Gardens FL 33418 16,022,310 104,231.13 5.73000 98 9/10/2015
40 San Diego CA 92123 16,000,000 98,254.00 5.50000 90 1/10/2015
41 Various NJ Various 15,712,383 89,853.45 5.02000 75 10/10/2013
-----------------------------------------------------------------------------------------------------------------------------
41.01 Paramus NJ 07652 7,160,954
41.02 Saddle Brook NJ 07662 6,118,096
41.03 Maywood NJ 07607 2,433,334
42 Charlotte NC 28226 15,624,104 103,674.75 6.59000 201 4/10/2024
43 Bloomington IN 47404 15,607,807 95,720.51 5.17000 102 1/10/2016
-----------------------------------------------------------------------------------------------------------------------------
44 Chevy Chase MD 20815 14,937,470 111,184.29 5.25000 203 6/10/2024
45 Westminster MD 21157 14,000,000 79,930.21 5.55000 105 4/10/2016
46 Phoenix AZ 85027 13,916,335 83,014.20 5.39000 72 7/10/2013
47 Henderson NV 89074 13,895,223 83,607.55 5.64000 84 7/10/2014
48 Towson MD 21204 13,782,257 78,146.55 5.34000 82 5/10/2014
-----------------------------------------------------------------------------------------------------------------------------
49 Novato CA 94947 13,695,743 73,211.13 4.47000 22 5/10/2009
50 Westminster CO 80031 13,501,308 83,937.07 6.00000 87 10/10/2014
51 Various Various Various 13,226,910 90,896.82 6.76000 65 12/10/2012
51A Westport CT 06880 5,125,427 35,222.52 6.76000 65 12/10/2012
51B Westport CT 06880 5,125,427 35,222.52 6.76000 65 12/10/2012
-----------------------------------------------------------------------------------------------------------------------------
51C Westfield NJ 07090 2,976,055 20,451.78 6.76000 65 12/10/2012
52 Greenbelt MD 20770 13,096,105 113,697.82 7.06000 13 8/1/2008
53 Las Vegas NV 89115 13,079,778 78,589.39 5.56000 79 2/10/2014
54 Birmingham AL 35209 13,056,136 96,742.23 7.38000 49 8/10/2011
55 Boca Raton FL 33487 12,614,956 74,630.27 5.60000 154 5/10/2020
-----------------------------------------------------------------------------------------------------------------------------
56 Milwaukee WI 53211 12,600,000 72,970.00 5.68000 112 11/11/2016
57 San Diego CA 92101 12,513,030 70,823.31 5.13000 90 1/10/2015
58 White Plains NY 10604 12,439,608 70,018.93 5.36000 90 1/1/2015
59 Clayton MO 63105 12,402,051 190,977.50 9.15000 30 1/1/2010
60 Accokeek MD 20607 12,399,450 71,545.11 5.22000 83 6/10/2014
-----------------------------------------------------------------------------------------------------------------------------
61 Monrovia CA 91016 12,323,118 92,595.17 7.69000 60 7/10/2012
62 Seattle WA 98102 12,273,613 73,742.62 5.85000 91 2/10/2015
63 Rancho Cordova CA 95670 12,205,792 71,825.31 5.50000 90 1/10/2015
63A Rancho Cordova CA 95670 7,445,533 43,813.44 5.50000 90 1/10/2015
63B Rancho Cordova CA 95670 4,760,259 28,011.87 5.50000 90 1/10/2015
-----------------------------------------------------------------------------------------------------------------------------
64 Eagleville PA 19403 12,125,756 97,165.58 7.12000 43 2/10/2011
65 Springfield VA 22150 12,043,062 100,198.75 7.71000 51 10/10/2011
66 Rockville MD 20852 11,402,405 79,017.56 6.89000 68 3/10/2013
67 Las Vegas NV 89118 11,149,184 63,383.73 5.21000 93 4/10/2015
68 Utica NY 13502 11,133,317 62,611.57 5.32000 99 10/10/2015
-----------------------------------------------------------------------------------------------------------------------------
69 Washington DC 20003 11,000,000 60,286.36 5.18000 99 10/10/2015
70 Rosedale MD 21237 10,783,060 63,913.77 5.71000 162 1/10/2021
70A Rosedale MD 21237 5,749,528 34,078.82 5.71000 162 1/10/2021
70B Rosedale MD 21237 5,033,532 29,834.95 5.71000 162 1/10/2021
71 Burke VA 22015 10,704,724 61,073.09 5.43000 85 8/10/2014
-----------------------------------------------------------------------------------------------------------------------------
72 Scottsdale AZ 85260 10,624,060 65,081.33 5.67000 73 8/10/2013
73 Las Vegas NV 89118 10,609,979 76,123.00 6.98000 47 6/10/2011
74 Newport News VA 23606 10,523,264 75,059.78 7.18000 66 1/10/2013
75 Urbandale IA 50322 10,405,626 82,639.33 8.25000 53 12/1/2011
76 Phoenix AZ 85085 10,364,588 63,977.71 6.12000 93 4/10/2015
-----------------------------------------------------------------------------------------------------------------------------
77 San Gabriel CA 91776 10,171,673 63,935.21 6.19000 94 5/10/2015
78 Issaquah WA 98027 10,105,944 77,745.81 6.90000 60 7/10/2012
79 Las Vegas NV 89119 10,062,811 61,485.02 5.63000 72 7/10/2013
80 Wilmington DE 19803 9,912,351 71,813.67 5.43000 97 8/10/2015
81 Las Vegas NV 89120 9,719,982 57,949.40 5.55000 84 7/10/2014
-----------------------------------------------------------------------------------------------------------------------------
82 Perrysburg OH 43551 9,685,492 60,728.72 6.12000 90 1/10/2015
83 Peoria AZ 85382 9,433,536 53,450.21 5.14000 90 1/10/2015
84 Rockledge FL 32955 9,352,744 54,407.95 5.39000 90 1/10/2015
85 Latham NY 12110 9,180,717 79,079.36 5.00000 159 10/10/2020
86 Houston TX 77062 9,121,266 59,808.83 5.51000 83 6/10/2014
-----------------------------------------------------------------------------------------------------------------------------
87 Tampa FL 33626 9,030,510 57,836.55 5.52000 132 7/10/2018
88 Gainesville FL 32608 9,000,000 51,101.01 5.50000 109 8/11/2016
89 Tampa FL Various 8,597,410 64,726.22 5.61000 208 11/10/2024
89A Tampa FL 33634 5,093,908 38,349.85 5.61000 208 11/10/2024
89B Tampa FL 33625 3,503,502 26,376.37 5.61000 208 11/10/2024
-----------------------------------------------------------------------------------------------------------------------------
90 Mt. Pleasant SC 29464 8,579,101 64,325.95 7.64000 58 5/10/2012
91 Las Vegas NV 89119 8,413,497 48,313.95 5.00000 9 4/10/2008
92 Las Vegas NV 89120 8,407,061 52,530.35 6.12000 93 4/10/2015
93 Hanover NH 03755 8,292,372 59,138.81 7.10000 60 7/10/2012
94 Rockville MD 20850 8,274,065 59,197.33 4.96000 209 12/10/2024
-----------------------------------------------------------------------------------------------------------------------------
95 Jacksonville FL 32216 8,250,723 63,170.49 7.83000 54 1/10/2012
96 Katy TX 77450 8,217,389 50,059.69 5.60000 72 7/10/2013
97 Cumming GA 30041 8,215,878 56,319.21 5.77000 72 7/10/2013
98 Chalfont PA 18914 8,133,290 45,280.70 5.25000 65 12/10/2012
99 Vero Beach FL 32968 8,092,568 53,947.35 5.72000 84 7/10/2014
-----------------------------------------------------------------------------------------------------------------------------
100 Phoenix AZ 85043 8,003,858 56,060.04 6.90000 60 7/10/2012
101 Scottsdale AZ 85250 7,914,033 44,377.96 5.18000 101 12/10/2015
102 Houston TX 77066 7,820,000 43,667.95 5.35000 104 3/10/2016
103 Wesley Chapel NC 28104 7,712,493 47,707.18 5.95000 87 10/10/2014
104 St Cloud FL 34769 7,661,745 47,450.92 5.90000 82 5/10/2014
-----------------------------------------------------------------------------------------------------------------------------
105 Las Vegas NV 89120 7,651,245 53,590.29 6.90000 60 7/10/2012
106 Houston TX 77098 7,600,000 44,981.16 5.88000 98 9/10/2015
107 Orlando FL 34786 7,187,957 47,353.89 5.65000 207 10/10/2024
108 Phoenix AZ 85085 7,075,048 38,811.62 5.16000 105 4/10/2016
109 Louisville KY 40229 6,861,107 72,837.14 7.70000 73 8/10/2013
-----------------------------------------------------------------------------------------------------------------------------
110 Ft Lauderdale FL 33316 6,801,740 41,295.87 5.85000 94 5/10/2015
111 Tampa FL 33549 6,784,508 45,440.76 5.64000 78 1/10/2014
112 Port St Lucie FL 34952 6,762,674 39,872.90 5.66000 162 1/10/2021
113 League City TX 77573 6,562,988 42,840.31 5.32000 77 12/10/2013
114 Coconut Creek FL 33073 6,504,097 49,377.13 7.59000 44 3/10/2011
-----------------------------------------------------------------------------------------------------------------------------
115 Chandler AZ 85226 6,193,968 38,330.10 5.99000 90 1/10/2015
116 Durham NC 27703 6,179,220 37,552.19 5.80000 89 12/10/2014
117 Kernersville NC 27284 5,970,787 34,077.39 5.32000 99 10/10/2015
118 Austin TX 78705 5,907,738 43,884.60 4.91000 196 11/10/2023
119 Las Vegas NV 89120 5,716,571 40,039.60 6.90000 60 7/10/2012
-----------------------------------------------------------------------------------------------------------------------------
120 Peabody MA 01960 5,417,902 44,994.86 7.81000 44 3/10/2011
121 Mount Pleasant SC 29464 5,378,092 44,222.45 7.47000 48 7/10/2011
122 Las Vegas NV 89115 4,929,841 28,244.78 5.32000 79 2/10/2014
123 North Greenbush NY 12144 4,837,135 41,121.27 5.00000 162 1/10/2021
124 Gaithersburg MD 20879 4,767,249 30,644.68 5.48000 92 3/10/2015
-----------------------------------------------------------------------------------------------------------------------------
125 California MD 20619 4,759,412 29,969.00 5.85000 66 1/10/2013
125A California MD 20619 3,337,210 21,013.70 5.85000 66 1/10/2013
125B California MD 20619 1,422,203 8,955.30 5.85000 66 1/10/2013
126 Hermosa Beach CA 90254 4,626,679 26,611.64 5.23000 50 9/10/2011
127 Germantown MD 20874 4,490,101 31,934.52 7.00000 55 2/10/2012
-----------------------------------------------------------------------------------------------------------------------------
128 Columbia MD 21046 4,324,438 24,789.82 5.43000 165 4/10/2021
129 Las Vegas NV 89139 4,283,463 24,982.72 5.50000 97 8/10/2015
130 South Bend IN 46628 3,801,484 36,094.19 7.59000 54 1/10/2012
131 Columbia MD 21046 3,538,177 20,282.58 5.43000 165 4/10/2021
132 Rockville MD 20852 2,926,218 16,808.49 5.38000 99 10/10/2015
-----------------------------------------------------------------------------------------------------------------------------
133 Dallas TX 75207 447,310 15,983.31 10.00000 32 3/1/2010
REMAINING INTEREST ADMINISTRATIVE CROSS
CONTROL AMORTIZATION ACCRUAL COST GROUND COLLATERALIZED
NO. TERM (MOS.) BASIS RATE (%) LEASE DEFEASANCE ARD LOAN GROUPS (1)
---------------------------------------------------------------------------------------------
1 290 30/360 0.02090 No No No Yes-A
1A 297 30/360 0.02090 No No No Yes-A
1B 267 30/360 0.02090 No No No Yes-A
2 328 30/360 0.02090 No No No Yes-B
2A 328 30/360 0.02090 No No No Yes-B
---------------------------------------------------------------------------------------------
2B 329 30/360 0.02090 No No No Yes-B
3 318 30/360 0.02090 No No No No
4 314 30/360 0.02090 No No No No
5 154 30/360 0.02090 No No No No
6 0 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
7 306 30/360 0.02090 No No No Yes-C
7A 306 30/360 0.02090 No No No Yes-C
7B 306 30/360 0.02090 No No No Yes-C
7C 306 30/360 0.02090 No No No Yes-C
7D 306 30/360 0.02090 No No No Yes-C
---------------------------------------------------------------------------------------------
7E 306 30/360 0.02090 No No No Yes-C
7F 306 30/360 0.02090 No No No Yes-C
8 360 30/360 0.02090 Yes No No No
9 234 30/360 0.02090 No No No No
10 330 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
11 334 30/360 0.02090 No No No No
12 0 30/360 0.02090 No No No No
13 337 30/360 0.04090 No No No No
14 341 30/360 0.02090 No No No No
15 291 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
16 336 30/360 0.02090 No No No Yes-I
16A 341 30/360 0.02090 No No No Yes-I
16B 330 30/360 0.02090 No No No Yes-I
17 0 30/360 0.04090 No No No No
18 303 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
19 195 30/360 0.04090 No No No No
20 278 30/360 0.02090 Yes No No No
21 0 30/360 0.04090 No No No No
22 207 30/360 0.02090 No No No No
23 330 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
24 346 30/360 0.02090 No Yes No No
25 347 30/360 0.02090 No Yes No No
26 339 30/360 0.02090 No No No No
27 290 30/360 0.02090 No Yes No No
28 198 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
29 303 30/360 0.02090 No No No No
30 0 30/360 0.02090 No No No No
31 302 30/360 0.02090 No No No No
32 270 30/360 0.02090 No No No No
33 270 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
34 312 30/360 0.02090 No No No No
35 270 30/360 0.02090 No Yes No No
36 300 30/360 0.02090 No No No No
37 345 30/360 0.02090 No No Yes-H
37A 348 30/360 0.02090 No No No Yes-H
---------------------------------------------------------------------------------------------
37B 341 30/360 0.02090 Yes No No Yes-H
38 0 30/360 0.04090 No No No No
39 278 30/360 0.04090 No Yes No No
40 300 30/360 0.02090 No No No No
41 315 30/360 0.02090 Yes No No
---------------------------------------------------------------------------------------------
41.01 No Yes No No
41.02 No Yes No No
41.03 Yes Yes No No
42 321 30/360 0.02090 No Yes No No
43 282 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
44 203 30/360 0.02090 No No No No
45 360 30/360 0.04090 No No No No
46 312 30/360 0.02090 No No No No
47 324 30/360 0.02090 No No No No
48 346 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
49 321 30/360 0.02090 No No No No
50 327 30/360 0.02090 No No No No
51 305 30/360 0.02090 No Yes No Yes-D
51A 305 30/360 0.02090 No Yes No Yes-D
51B 305 30/360 0.02090 No Yes No Yes-D
---------------------------------------------------------------------------------------------
51C 305 30/360 0.02090 No Yes No Yes-D
52 193 30/360 0.02090 No No No No
53 319 30/360 0.02090 No No No No
54 289 30/360 0.02090 No No No No
55 334 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
56 360 30/360 0.02090 No No No No
57 330 30/360 0.02090 No No No No
58 354 30/360 0.02090 No No No No
59 90 30/360 0.02090 No No No No
60 323 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
61 300 30/360 0.02090 No No No No
62 343 30/360 0.02090 No No No No
63 330 30/360 0.02090 No No No Yes-J
63A 330 30/360 0.02090 No No No Yes-J
63B 330 30/360 0.02090 No No No Yes-J
---------------------------------------------------------------------------------------------
64 228 30/360 0.02090 No No No No
65 238 30/360 0.02090 No Yes No No
66 308 30/360 0.02090 No No No No
67 333 30/360 0.04090 No No No No
68 351 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
69 360 30/360 0.02090 Yes No No No
70 342 30/360 0.04090 No Yes No Yes-G
70A 342 30/360 0.04090 No Yes No Yes-G
70B 342 30/360 0.04090 No Yes No Yes-G
71 349 30/360 0.02090 Yes Yes No No
---------------------------------------------------------------------------------------------
72 313 30/360 0.02090 No Yes No No
73 287 30/360 0.02090 No No No No
74 306 30/360 0.02090 No No No No
75 293 30/360 0.02090 No No No No
76 344 30/360 0.04090 No No No No
---------------------------------------------------------------------------------------------
77 334 30/360 0.02090 Yes Yes No No
78 240 30/360 0.02090 No Yes No No
79 312 30/360 0.02090 Yes No No No
80 217 30/360 0.02090 No No No No
81 324 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
82 330 30/360 0.02090 No No No No
83 330 30/360 0.02090 No Yes No No
84 330 30/360 0.02090 No No No No
85 159 30/360 0.02090 No No No No
86 263 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
87 276 30/360 0.04090 No Yes No No
88 360 30/360 0.02090 No Yes No No
89 208 30/360 0.04090 No No No Yes-E
89A 208 30/360 0.04090 No No No Yes-E
89B 208 30/360 0.04090 No No No Yes-E
---------------------------------------------------------------------------------------------
90 298 30/360 0.02090 No No No No
91 311 30/360 0.02090 No No No No
92 333 30/360 0.04090 No No No No
93 300 30/360 0.02090 No No No No
94 209 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
95 294 30/360 0.04090 No No No No
96 312 30/360 0.02090 No No No No
97 260 30/360 0.02090 No Yes No No
98 353 30/360 0.02090 No No No No
99 264 30/360 0.04090 No Yes No No
---------------------------------------------------------------------------------------------
100 300 30/360 0.02090 No No No No
101 341 30/360 0.02090 No Yes No No
102 360 30/360 0.02090 No No No No
103 327 30/360 0.02090 No Yes No No
104 322 30/360 0.04090 No Yes No No
---------------------------------------------------------------------------------------------
105 300 30/360 0.02090 No No No No
106 360 30/360 0.02090 No No No No
107 267 30/360 0.04090 No No No No
108 357 30/360 0.04090 No No No No
109 145 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
110 334 30/360 0.02090 No Yes No No
111 258 30/360 0.04090 No Yes No No
112 342 30/360 0.04090 No Yes No No
113 257 30/360 0.02090 No No No No
114 284 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
115 330 30/360 0.04090 No No No No
116 329 30/360 0.02090 No Yes No No
117 339 30/360 0.02090 No No No No
118 196 30/360 0.02090 No No No No
119 300 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
120 236 30/360 0.02090 No Yes No No
121 228 30/360 0.02090 No No No No
122 336 30/360 0.02090 No No No No
123 162 30/360 0.02090 No No No No
124 272 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
125 306 30/360 0.02090 No Yes No Yes-F
125A 306 30/360 0.02090 No Yes No Yes-F
125B 306 30/360 0.02090 No Yes No Yes-F
126 326 30/360 0.04090 No Yes No No
127 295 30/360 0.02090 No Yes No No
---------------------------------------------------------------------------------------------
128 345 30/360 0.04090 No No No No
129 337 30/360 0.02090 Yes Yes No No
130 174 30/360 0.02090 No No No No
131 345 30/360 0.04090 No No No No
132 339 30/360 0.02090 No No No No
---------------------------------------------------------------------------------------------
133 30 30/360 0.02090 No No No No
| EX-99.1 | 27th Page of 56 | TOC | 1st | Previous | Next | Bottom | Just 27th |
|---|
EXHIBIT B
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-Off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the 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 each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan documents restricts the Seller's right to transfer the
Mortgage Loan to the Purchaser or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such
B-1
| EX-99.1 | 28th Page of 56 | TOC | 1st | Previous | Next | Bottom | Just 28th |
|---|
Mortgage. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related Mortgagor's
personal property used in, and reasonably necessary to operate, the related
Mortgaged Property. In the case of a Mortgaged Property operated as a hotel or
an assisted living facility, the Mortgagor's personal property includes all
personal property that a prudent mortgage lender making a similar Mortgage Loan
would deem reasonably necessary to operate the related Mortgaged Property as it
is currently being operated and a Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in such personal property, to the extent a security interest
may be so created therein, and such security interest is a first priority
security interest, subject to any prior purchase money security interest in such
personal property and any personal property leases applicable to such personal
property. Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of Uniform Commercial Code financing statements are required in order to effect
such perfection.
(5) Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents or for rents to
be paid directly to the mortgagee.
(6) Mortgage Status; Waivers and Modifications. Except by a written
instrument, any of which are included in the related Mortgage File, no Mortgage
has been satisfied, cancelled, rescinded or subordinated in whole or in part,
and the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real property
that are set forth on Schedule A to Exhibit 2), nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File and none of the Mortgage Loans has
been materially modified since July 31, 2007.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date as set forth on Schedule A to this Exhibit 2, each Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage (or
adequate reserves therefor have been established based on the engineering
report) that would materially and adversely affect its value as security for the
related Mortgage Loan and (ii) the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an engineering report 18 months prior to the
Closing Date
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as set forth on Schedule A to this Exhibit 2, each Mortgaged Property is in good
repair and condition and all building systems contained therein are in good
working order (or adequate reserves therefor have been established) and each
Mortgaged Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related Mortgage
Loan as of the date hereof. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property that were considered
in determining the appraised value of the Mortgaged Property lay wholly within
the boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's Title Policy referred to
herein or that do not materially and adversely affect the value or marketability
of such Mortgaged Property, and no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged Property, except
those encroachments that are insured against by the Title Policy referred to
herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, or any such funds so escrowed have not been
released.
(10) Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(11) Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection
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with any full or partial release of the related Mortgaged Property or related
security for the related Mortgage Loan.
(12) Environmental Conditions. An environmental site assessment, or an
update of a previous such report (which update may have been performed pursuant
to a database update), was performed with respect to each Mortgaged Property in
connection with the origination or the acquisition of the related Mortgage Loan,
or in connection with the sale of the related Mortgage Loan by the Seller
hereunder, such report and/or update of such report (an "Environmental Report")
has been delivered to the Purchaser, and there is no material and adverse
environmental condition or circumstance affecting any Mortgaged Property that
was not disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material and
adverse environmental condition or circumstance affecting any Mortgaged
Property, (i) a party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance or (ii) environmental
insurance covering such condition was obtained or must be maintained until the
condition is remediated or (iii) the related Mortgagor was required either to
provide additional security that was deemed to be sufficient by the originator
in light of the circumstances and/or to establish an operations and maintenance
plan. In connection with the origination of each Mortgage Loan, each
environmental consultant has represented in such Environmental Report or in a
supplement letter that the environmental assessment of the applicable Mortgaged
Property was conducted utilizing generally accepted Phase I industry standards
using the American Society for Testing and Materials (ASTM) standards.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local environmental
law, ordinance, rule, regulation or order, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Sections 9601 et seq.), the Hazardous Materials
Transportation Act as amended (42 U.S.C. Sections 6901 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901
et seq.), the Federal Water Pollution Control Act as amended (33 U.S.C.
Sections 1251 et seq.), the Clean Air Act as amended (42 U.S.C. Sections
1251 et seq.) and any regulations promulgated pursuant thereto.
(13) Loan Document Status. Each Mortgage Note, Mortgage, Assignment of
Leases and other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, additional interest, prepayment premiums or yield maintenance charges.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike,
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civil commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "All Risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no delinquent
or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does
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not prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related Mortgage
Loan, with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and the Trustee as its assignee upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be unreasonably
withheld;
(d) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related Mortgage
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling a
third party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or (B)
to the payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
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(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or quiet
enjoyment of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the related
Mortgage;
(j) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written 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; provided, however, that termination
or cancellation without such consent may be binding on the mortgagee if (i)
an event of default occurs under the Ground Lease, (ii) notice is provided
to the mortgagee and (iii) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable cure
period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of
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the related Mortgaged Property, directly or indirectly, for the payment of any
amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property (exclusive of any related
personal property) is free and clear of any and all mechanics' and materialmen's
liens that are prior or equal to the lien of the related Mortgage, except, in
each case, for liens insured against by the Title Policy referred to herein, and
no rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage except, in each
case, for liens insured against by the Title Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in an
exception on Schedule A attached hereto to another representation and warranty
made by the seller in this Exhibit 2, at origination, each Mortgage Loan
complied with all applicable federal, state and local statutes and regulations.
Each Mortgage Loan complied with (or is exempt from) all applicable usury laws
in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a release
price and prepayment consideration in connection therewith. Except as described
in the first sentence hereof and for those Mortgage Loans identified on Schedule
A, no Mortgage Loan permits the full or partial release or substitution of
collateral unless the mortgagee or servicer can require the Mortgagor to provide
an opinion of tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of such
Mortgage Loan within the meaning of Treas. Reg. Section 1.860G-2(b)(2) and (b)
would not cause such Mortgage Loan to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3)(A) of the Code. The loan documents require the
related Mortgagor to bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
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specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller elsewhere in this Exhibit 2 or
the exceptions listed in Schedule A attached hereto.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report or
an endorsement to the related Title Policy, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located (including, without limitation,
when commercially reasonable, a representation of the related mortgagor at the
time of origination of the subject Mortgage Loan), the improvements located on
or forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property, such value as
determined by the appraisal performed at origination or in connection with the
sale of the related Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. The Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien (other than a
Permitted Encumbrance) junior to the lien of the related Mortgage except for
cases involving other Mortgage Loans.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
(33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
(35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior
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written consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, or a controlling interest in the
related Mortgagor, is transferred, sold or encumbered by a junior mortgage or
deed of trust; provided, however, that certain Mortgage Loans provide a
mechanism for the assumption of the loan by a third party upon the Mortgagor's
satisfaction of certain conditions precedent, and upon payment of a transfer
fee, if any, or transfer of interests in the Mortgagor or constituent entities
of the Mortgagor to a third party or parties related to the Mortgagor upon the
Mortgagor's satisfaction of certain conditions precedent.
(36) Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) Prepayment Premiums. As of the applicable date of origination of each
such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents or the related Mortgage Loan documents provide
substantially to the effect that it was formed or organized solely for the
purpose of owning and operating one or more of the Mortgaged Properties securing
the Mortgage Loans and prohibit it from engaging in any business unrelated to
such Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets other
than those related to its interest in, and operation of, such Mortgaged Property
or Properties, or any indebtedness other than as permitted by the related
Mortgage(s) or the other related Mortgage Loan documents, that it has its own
books and records and accounts separate and apart from any other person (other
than a Mortgagor for a Mortgage Loan that is cross-collateralized and
cross-defaulted with the related Mortgage Loan), and that it holds itself out as
a legal entity, separate and apart from any other person.
(41) Defeasance and Assumption Costs. The related Mortgage Loan documents
provide that the related Mortgagor is responsible for the payment of all
reasonable costs and expenses of the Lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than
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government securities (as defined in Section 2(a)(16) of the Investment Company
Act of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
(43) Authorized to do Business. 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.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-Off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy does not, as of the date hereof, specifically exclude acts
of terrorism from coverage. With respect to each of the Mortgage Loans, the
related Mortgage Loan documents do not expressly waive or prohibit the mortgagee
from requiring coverage for acts of terrorism or damages related thereto, except
to the extent that any right to require such coverage may be limited by
commercially reasonable availability or commercially reasonable cost, or as
otherwise indicated on Schedule A.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan documents require the related Mortgagor, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-Off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan documents
require the Mortgagor, in some cases at the request of the lender, to provide to
the holder of such Mortgage Loan operating statements and (if there is more than
one tenant) rent rolls and/or financial statements of the Mortgagor annually),
and such other information as may be required therein.
(46) Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan, and such
appraisal satisfied the guidelines in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 or the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, each, as in effect on the date such
Mortgage Loan was originated.
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SCHEDULE I
TIAA SEASONED COMMERCIAL MORTGAGE TRUST 2007-C4
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exception to representation 6 - Mortgage Status; Waivers and Modifications
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
1 1000/Fox Portfolio With respect to the cross-collateralized and
cross-defaulted mortgage loans listed to the left
and identified on the Mortgage Loan Schedule as
the Fox Tower Mortgage Loan and 1000 Broadway
Mortgage Loan, which mortgage loans are secured by
the Fox Tower Mortgaged Property and 1000 Broadway
Mortgaged Property, the second mortgage
encumbering the 1000 Broadway Mortgaged Property
(which second mortgage provides additional
security for the Fox Tower Mortgage Loan) was
modified after July 31, 2007 to add a provision to
the effect that notwithstanding anything to the
contrary contained in such second mortgage, upon
repayment in full of the 1000 Broadway Mortgage
Loan and the satisfaction of all other obligations
of the related borrower set forth in the related
loan documents, the 1000 Broadway Mortgaged
Property shall be released from the lien of such
second mortgage.
5 Airtouch Spectrum Campus The related loan documents were amended after July
28 Alton Corporate Center 31, 2007 to remove the requirement that the
related borrower deliver its annual financial
statements and certificate as to net worth to
lender.
7 Regency Portfolio The related promissory notes were amended after
July 31, 2007 to correct the original principal
amounts stated therein.
9 Concord Airport Plaza An incorrect signature page to an amendment to the
related mortgage was replaced with the correct
signature page after July 31, 2007.
33 2200 Renaissance Certain conditions for granting lender consent to
the substitution of the related mortgaged real
property by the borrower were waived by the Seller
after July 31, 2007 as follows: (i) with respect
to the requirements of section 12.4(a) of the
related mortgage ("Lender determines that (i) the
proposed Substitute Property is of comparable
quality and utility as the Property, and (ii) the
proposed Substitute Property has an fair market
value, as evidenced to Lender's satisfaction, of
no less than the fair market value of the Property
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without impairment as of the date of recordation
of this Mortgage"), the Seller notified the
borrower that the requirements of such section
would be deemed satisfied if the proposed
substitute property is an office property and the
borrower delivers to lender at the time of the
proposed substitution an appraisal (which
appraisal satisfies the guidelines in Title XI of
the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 or the requirements of the
"Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards
Board of the Appraisal Foundation) that shows an
appraised value with respect to the substitute
property that is no less than the appraised value
of the mortgaged real property as of the date of
recordation of the related mortgage and (ii) the
Seller waived the requirements of section 12.4(b)
of the related mortgage ("Any such substitution
will be on terms and conditions acceptable to
Lender, including Lender's standard due diligence
requirements and will be subject to Lender's
internal approval process").
Exception to representation 12 - Environmental Conditions
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
133 Chart House Inc The related loan documents do not specifically
require the related borrower to comply with all
applicable federal, state and local environmental
laws and regulations (other than a general
requirement that the borrower comply with all
applicable federal, state and local laws with
respect to the mortgaged real property).
Exception to representation 14 - Insurance
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
2 Algonquin Portfolio The related loan documents do not expressly
3 Sammamish Parkplace authorize the lender to maintain insurance with
6 One Convention Place respect to the related mortgaged real property at
9 Concord Airport Plaza the related borrower's cost and expense.
45 Westminster Crossing West Shopping Insurance coverage against acts of terrorism is
Cntr not in place.
50 Westfield Village Shopping Center
Store#2160
57 Entrada Apartments
64 2750 Monroe Blvd. (Quest)
72 Mcdowell Mountain Marketplace
84 Fountain Villas Apartments
88 Shoppes of Williston Road
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91 Sierra Health Services
109 Commerce Office Center
110 Causeway Corporate Centre
111 Northgate Square Shopping Center
113 South Shore Harbour Shopping Center
118 900 West 23rd Street Apartments
126 Sav On Drugs
130 Global Motorsport
34 Plaza in the Park No windstorm insurance is in place.
39 Mirasol Walk Shopping Cntr.
86 Bay Pointe Space Center
87 Publix at Westchase
95 Baymeadows Business Center
102 Champion Forest CVS Center
107 The Cascades at Isleworth
111 Northgate Square Shopping Center
121 Sea Island Shopping Center
Exception to representation 15 - Taxes and Assessments
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
50 Westfield Village Shopping Center Real estate taxes with respect to the mortgaged
Store#2160 real property are currently delinquent and due in
the amount of $15.99.
Exception to representation 17 - Leasehold Estate
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
1 1000/Fox Portfolio With respect to the mortgage loans listed to the
left, a portion of the mortgaged properties
consists of a leasehold interest pursuant to a
certain Subsurface Lease dated January 4, 2006
between The City of Portland, Oregon, as lessor,
and the related borrower, as lessee (as amended,
restated, replaced, supplemented or otherwise
modified from time to time, the "Fox Tower
Subsurface Lease"). The Fox Tower Subsurface Lease
(i) does not contain any provision that permits
the leasehold mortgagee to assign its interest in
the mortgage loan without the lessor's consent,
(ii) may be amended without the leasehold
mortgagee's consent prior to an event of default
under the Fox Tower Subsurface Lease, (iii) may be
terminated without the lessor offering a new lease
to the leasehold mortgagee, provided, after
termination the leasehold mortgagee may request a
new lease, and provided, further, the lessor shall
waive its right to terminate the Fox Tower
Subsurface
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Lease during the pendency of a foreclosure
proceeding with respect to the leasehold interest,
(iv) does not contain any provision which requires
the lessor to enter into a new lease upon
termination of the Fox Tower Subsurface Lease if
such lease is rejected in a bankruptcy proceeding,
and (v) may be amended without the leasehold
mortgagee's consent prior to an event of default
under the Fox Tower Subsurface Lease, provided,
after an event of default under the Fox Tower
Subsurface Lease, the lease cannot be amended
without notice to the leasehold mortgagee.
20 Wheatley Plaza The related ground lease documents do not require
the leasehold mortgagee's consent prior to
amendment of such ground lease.
41 The Bergman Office Portfolio The related ground lease documents do not require
the leasehold mortgagee's consent prior to
amendment of such ground lease and do not require
the related lessor to deliver any notice of
termination with respect to the ground lease to
the leasehold mortgagee.
71 Burke Town Plaza The related ground lease expires on January 31,
2031, which is less than 20 years after the stated
maturity date of the related mortgage loan.
79 Spencer & Helm Business Center(EJM) The consent of the county with respect to the
mortgaged real property is required prior to
assignment of the related ground lease provided,
however, the related ground lease provides that
the ground lessor shall recognize the leasehold
mortgagee as lessee under such ground lease upon
foreclosure of the leasehold mortgage.
129 Blue Diamond Business Cntr-Bldg 1 The consent of the lessor is required prior to
assignment of the related ground lease, provided,
however, the related ground lease provides that
the ground lessor shall recognize the leasehold
mortgagee as lessee under such ground lease upon
foreclosure of the leasehold mortgage.
Exception to representation 25 - Releases of Mortgaged Property
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
1 1000/Fox Portfolio With respect to the mortgage loans listed to the
left, each of the mortgaged properties securing
such mortgage loans is cross-defaulted and/or
cross-collateralized with each other. The related
loan
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documents provide for the release of the
cross-collateralization, subject to the
satisfaction of certain conditions, including
among others, that (i) the debt service coverage
ratio with respect to each of the mortgaged
properties is equal to or greater than 1.50x, (ii)
the loan-to-value ratio with respect to each of
the mortgaged properties is no greater than 65%
and (iii) the satisfaction of certain tenant
occupancy conditions with respect to each of the
mortgaged properties.
6 One Convention Place The related loan documents permit the substitution
33 2200 Renaissance of the existing mortgaged real property with
one or more substitute properties and a
corresponding release of the existing mortgaged
real property subject to the satisfaction of
certain conditions as set forth in the related
loan documents.
22 North Hills Industrial Park The related loan documents permit the partial
29 Dulles Business Park release of certain portions of the mortgaged real
37 Market Place and New Market Portfolio property subject to the satisfaction of certain
conditions as set forth in the related loan
documents.
6 One Convention Place The related loan documents do expressly provide
29 Dulles Business Park that a mortgagee or servicer can require the
33 2200 Renaissance related borrower to deliver, or bear the costs of,
a tax opinion in connection with a release or
substitution of the related collateral.
Exception to representation 30 - Junior Liens
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
33 2200 Renaissance The related borrower has obtained subordinate
financing secured by the mortgaged real property
(a second mortgage) in the original principal
amount of $4,592,500.
57 Entrada Apartments The related borrower has obtained subordinate
financing secured by the mortgaged real property
(a second mortgage) in the original principal
amount of $3,500,000.
3 Sammamish Parkplace The related borrower may obtain subordinate
12 Specialty Laboratories financing secured by the related mortgaged real
14 Tiffany Plaza Retail Center property subject to the satisfaction of certain
17 Franklin Farm Village conditions as set forth in the related loan
19 Crossroads Commons Retail SC documents.
21 Colonnade at Union Mill
38 Muddy Branch
58 711 Westchester Avenue
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Exception to representation 32 - Servicing
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
21 Colonnade at Union Mill None of the mortgage real properties were
38 Muddy Branch inspected during or after 2006.
69 660 Pennsylvania Avenue Retail/Office
Exception to representation 35 - Due on Sale
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
7 Regency Portfolio The related loan documents do not contain a "due
28 Alton Corporate Center on sale" clause with respect to transfers of
44 Highland House Apartments interest in the related borrower or otherwise
57 Entrada Apartments permit certain transfers of interest in the
72 McDowell Mountain Marketplace related borrower with no or limited conditions.
94 Yale Village Apartments
124 Montgomery Airpark Business Park
133 Chart House Inc.
70 Seven Square Corporate Park The owners of the related borrowers have incurred
mezzanine financing in the original principal
amount of $2,000,000 secured by pledges of the
ownership interests in the related borrower.
17 Franklin Farm Village The related loan documents permit mezzanine
23 Charles County Shopping Center financing secured by the ownership interests in
58 711 Westchester Avenue the related borrower.
68 North Utica Shopping Center
Exception to representation 36 - Non-Recourse Exceptions
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
1 1000/Fox Portfolio There is no natural person liable for the
2 Algonquin Portfolio non-recourse carveouts described in this
3 Sammamish Parkplace representation.
4 Pinnacle Towers
5 Airtouch Spectrum Campus
6 One Convention Place
7 Regency Portfolio
8 University Commons Shopping Cntr
9 Concord Airport Plaza
10 Quincy Street Station
11 US Bank Plaza
15 Centrum at Crossroads Shop.Ctr.
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17 Franklin Farm Village
20 Wheatley Plaza
24 Linda Mar Shopping Center
25 Webster Square
28 Alton Corporate Center
29 Dulles Business Park
30 Harbor Point Apartments
32 Shops At Monocacy
33 2200 Renaissance
34 Plaza In The Park
35 15 Exchange Place Office
39 Mirasol Walk Shopping Cntr.
40 Olympia Plaza
44 Highland House Apartments
48 Radcliffe at Towson
49 Novato Fair Shopping Center
54 600 University Park Place
55 Boca Valley Plaza Shopping Center
58 711 Westchester Avenue
59 Clayton Corporate Park
64 2750 Monroe Blvd. (QUEST)
65 Springfield Office Center
71 Burke Town Plaza
72 McDowell Mountain Marketplace
75 Rain & Hail Headquarter Bldg
83 Ventana Lakes Village Center
87 Publix at Westchase
89 Northport/Gunn Portfolio
90 Belle Hall Shopping Center I
94 Yale Village Apartments
96 Cinco Ranch
98 1600 Manor Drive
99 Southpoint Center
101 Chaparral Plaza Retail Center
104 St Cloud West Publix Shopping Center
111 Northgate Square Shopping Center
112 Rivergate Plaza
116 Ravenstone Village Shopping Center
120 8 Essex Center Drive
124 Montgomery Airpark Business Park
125 Holly Portfolio
128 Columbia II Industrial Building
131 Columbia III Industrial Building
132 Fishers Lane Commerce Center
76 McDowell Mountain Marketplace The related guarantor's liability with respect to
recourse obligations are limited to amounts
contained
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in a specified account as set forth in the related
loan documents.
133 Chart House Inc The loan documents do not provide for any
non-recourse exceptions.
Exception to representation 40 - Single Purpose Entity
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
1 1000/Fox Portfolio The related borrower is not a Single Purpose
3 Sammamish Parkplace Entity and/or the related mortgage loan documents
4 Pinnacle Towers do not require such borrower to be a Single
5 Airtouch Spectrum Campus Purpose Entity.
6 One Convention Place
7 Regency Portfolio
9 Concord Airport Plaza
10 Quincy Street Station
11 US Bank Plaza
12 Specialty Laboratories
17 Franklin Farm Village
20 Wheatley Plaza
28 Alton Corporate Center
31 Shoppes at Dilworthtown Crossing
33 2200 Renaissance
52 Capital Office V
58 711 Westchester Avenue
59 Clayton Corporate Park
75 Rain & Hail Headquarter Bldg
133 Chart House Inc
2 Algonquin Portfolio At origination, the initial borrower was not a
Single Purpose Entity. The current borrower, who
assumed the related mortgage loans from the
initial borrower, is a Single Purpose Entity.
Exception to representation 45 - Operating Statements and Rent Rolls
ANNEX A-1
CONTROL # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--------- ------------------------------------- --------------------------------------------------
2 Algonquin Portfolio The related loan documents do not require the
33 2200 Renaissance related borrower to deliver rent rolls.
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EXHIBIT C-1
OPINION OF DECHERT LLP
C-1-1
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August 9, 2007
To the parties listed on Schedule A attached hereto
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4
Ladies and Gentlemen:
You have requested our opinion, as special counsel to Teachers Insurance and
Annuity Association of America (the "Seller"), with respect to certain matters
in connection with that certain Mortgage Loan Purchase Agreement, dated as of
August 2, 2007 (the "MLPA"), by and among Seller and Structured Asset Securities
Corporation II (the "Purchaser"). Capitalized terms used herein and not
otherwise defined herein have the meanings set forth in the MLPA.
For the purposes of rendering this opinion, we have examined a copy of the MLPA
and such other documents, records and papers as we have deemed necessary and
relevant as a basis for this opinion.
In making such examination and in rendering the opinions set forth below, we
have with your permission assumed and relied upon the accuracy of all factual
information set forth in the MLPA, the genuineness of all signatures of parties
to the MLPA, the legal capacity of natural persons, the authenticity of all
corporate and limited liability company records, certificates, instruments and
documents submitted to us as originals and the conformity to authentic original
corporate and limited liability company records, certificates, instruments and
documents of all corporate and limited liability company records, certificates,
instruments and documents submitted to us as certified, conformed or photostatic
copies. We express no opinion as to the applicability to or the effect on the
transactions contemplated by the MLPA of any federal or state securities laws or
regulations.
In our examination we have also assumed, with your permission and without
independent investigation, that:
(a) each party to the MLPA is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization or formation and has all requisite power and authority to
execute, deliver and perform its respective obligations thereunder;
(b) except as set forth in the opinion paragraph 2 below, no
consent, approval, authorization, declaration or filing by or with any
governmental
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To the parties listed on Schedule A attached hereto
August 9, 2007
Page 2
commission, board or agency is required for such execution, delivery
and performance;
(c) the MLPA has been duly authorized by all necessary action by
the parties thereto, has been duly executed and delivered by such
parties, and, except as set forth in the opinion paragraph 1 below,
constitutes a legal, valid and binding obligation of each party
thereto, and (subject to the qualifications set forth in the opinion
paragraph 1) is enforceable against it in accordance with its terms;
(d) fair and adequate consideration giving rise to the
obligations set forth in the MLPA has been and will be paid, delivered
or incurred, as the case may be;
(e) no provision of the MLPA has been modified, supplemented or
waived either by written or oral agreement or by course of conduct
between the parties (and we have no actual knowledge inconsistent with
such assumption);
(f) with respect to the transactions described or contemplated in
the MLPA, there has been and will be no mutual mistake of fact and
there exists and will exist no fraud or duress; and
(g) the Seller is the sole holder of title to the Mortgage Loans
(and we have no actual knowledge inconsistent with such assumption).
In reaching the conclusions set forth in this opinion, we have not undertaken
any independent investigation of the records maintained by the Seller and as to
matters of fact material to our opinions, we have relied upon representations of
the Seller, and on certificates of officers of the Seller and of public
officials, and we have made no independent inquiry into the accuracy of such
representations. We express no opinion with respect to the enforceability,
perfection, or priority of the liens of the Mortgage Loans. Furthermore, we
express no opinion as to restrictions on assignment, if any, that may be set
forth therein.
Furthermore, we have reviewed for purposes of our opinion in paragraph 2 below
only such laws, statutes, rules and regulations which a reasonably prudent
transactional lawyer would deem relevant to review for purposes of rendering
such opinion
Based upon the foregoing, and subject to the limitations set forth below, we are
of the opinion that:
1. The MLPA constitutes a legal, valid and binding agreement enforceable in
accordance with its terms against the Seller, subject to (i) applicable
bankruptcy, insolvency,
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To the parties listed on Schedule A attached hereto
August 9, 2007
Page 3
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, (ii) general principles of equity,
including, without limitation, principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity), (iii) public policy considerations, and (iv)
any limitation under applicable law of enforcement of rights with respect to
indemnification and contribution obligations and provisions (a) purporting to
waive or limit rights to trial by jury, oral amendments to written agreements or
rights of set off or (b) relating to submission to jurisdiction, venue or
service of process.
2. Neither the execution, delivery or performance of the MLPA by the
Seller, nor the consummation by the Seller of any of the transactions
contemplated by the terms of the MLPA, conflicts with or results in a breach or
violation of any United States Federal or State of New York law, statute, rule
or regulation, except for any breach or violation that would not materially and
adversely affect the Seller's ability to perform its obligations and duties
under the MLPA, and except that no opinion is expressed in this paragraph as to
federal and state securities or blue sky laws.
The opinions expressed herein are limited to the laws of the State of New York
and the federal laws of the United States.
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To the parties listed on Schedule A attached hereto
August 9, 2007
Page 4
The opinions expressed herein are rendered only to those to whom this opinion
letter is specifically addressed in connection with the transactions
contemplated by the MLPA and, without our express written consent, may not be
relied upon, used, quoted, circulated (except in a closing binder, provided that
this entire opinion letter is included therein) or otherwise referred to by any
other person for any other purpose. This opinion speaks only as of the date
hereof. We have no obligation to advise the addressee (or any other party) of
changes in the law or facts that may occur after the date of this opinion.
Very truly yours,
/s/ Dechert LLP
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Schedule A
Structured Asset Securities Corporation II
745 Seventh Avenue
New York, New York 10019
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, New York 10041
Fitch, Inc.
One State Street Plaza
New York, New York 10004
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
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EXHIBIT C-2
C-2-1
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TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
COLLEGE RETIREMENT AND EQUITIES FUND
730 Third Avenue
New York, NY 10017-3206
212 490-9000 800 842-2733
August 9, 2007
To each of the addressees set forth on the attached Schedule A.
Re: TIAA Seasoned Commercial Mortgage Trust 2007-C4, Commercial Mortgage
Pass-Through Certificates, Series 2007-C4
Ladies and Gentlemen:
I am an Associate General Counsel of Teachers Insurance and Annuity
Association of America (the "Company"), a New York insurance company, and as
such you have requested my opinion in connection with (i) that certain Mortgage
Loan Purchase Agreement, dated as of August 2, 2007 (the "Purchase Agreement"),
by and between the Company and Structured Asset Securities Corporation II (the
"Depositor"), (ii) that certain Underwriting Agreement, dated as of August 2,
2007 (the "Underwriting Agreement"), among the Depositor, Lehman Brothers Inc.
("Lehman"), Morgan Stanley & Co. Incorporated ("Morgan Stanley") and the
Company, (iii) that certain Certificate Purchase Agreement, dated as of August
2, 2007 (the "Certificate Purchase Agreement"), among the Depositor, Lehman and
the Company, and (iv) that certain Indemnification Agreement, dated as of August
2, 2007 (the "Indemnification Agreement" and together with the Purchase
Agreement, the Underwriting Agreement and the Certificate Purchase Agreement,
the "Agreements"), among the Company, the Depositor, Lehman and Morgan Stanley.
Capitalized terms used herein and not defined herein shall have the meanings set
forth in the Purchase Agreement and, to the extent not defined therein, in the
Indemnification Agreement.
For purposes of this opinion, I have examined or caused to be examined
within the Asset Management Law Division of the Company, copies of the following
documents:
1. The Agreements; and
2. The Charter of the Company as filed with the New York State Insurance
Department on March 4, 1918, as most recently amended on August 11,
2004 (the "Charter") and the By-laws of the Company (the "By-laws"
and, together with the Charter, the "Organizational Documents").
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To each of the addressees set forth on the attached Schedule A.
August ____, 2007
Page 2
Additionally, I have examined or caused to be examined within the Asset
Management Law Division of the Company, originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. When relevant facts were not independently
established, I have relied upon certificates of public officials and appropriate
representatives of the Company and upon representations as to facts made in or
pursuant to the Agreements.
I have assumed the genuineness of all signatures, the authenticity of all
items submitted to me as originals, and the conformity with originals of all
items submitted to me as copies and the due authority of all persons executing
the same, except with regard to the genuineness of all signatures and the due
authority of all persons executing the same on behalf of the Company. I have
also assumed the due authorization, execution and delivery of the Agreements by
all of the parties thereto other than the Company.
I am a member of the bar of the State of New York. My opinion herein is
limited to federal laws and the laws of the State of New York, and I express no
opinion as to the laws of any other jurisdiction or their applicability to the
matters covered by the Agreements. There are no implied opinions in this letter.
The opinions in this letter are limited to the opinions expressly stated in
paragraphs A through F below, and no opinions shall be inferred beyond the
opinions expressly stated in such paragraphs.
Based upon, subject to and limited by the foregoing, I am of the opinion
that:
A. The Company is a corporation duly organized and licensed to conduct the
business of life insurance under the Insurance Law of the State of New York and
is validly existing and in good standing as a life insurance company under the
Insurance Law of the State of New York and has the requisite power and authority
to execute and deliver the Agreements and to perform its obligations thereunder
as of the date hereof.
B. The Agreements have been duly authorized, executed and delivered by the
Company.
C. To the best of my knowledge (after due inquiry), the execution, delivery
and performance by the Company of the Agreements will not conflict with, result
in a breach, violation or acceleration of, or constitute a default under, any
order of any federal or state court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company.
D. The execution, delivery and performance by the Company of the Agreements
will not violate the Organizational Documents or, to the best of my knowledge
(after due inquiry), breach, violate, conflict with, or constitute a material
default under, (1) any material agreement or contract to which the Company is a
party or to which the Company is subject or by which any
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To each of the addressees set forth on the attached Schedule A.
August ____, 2007
Page 3
of its property is bound, or (2) any applicable judgment, order, determination,
or decree of any court, arbitrator, or governmental authority, which, in the
case of each of clause (1) and clause (2), would have a material adverse effect
on the ability of the Company to perform its obligations under, or the validity
or enforceability of, the Agreements.
E. No consent, approval, or authorization or order of any federal or New
York State court, governmental agency or body or the Superintendent of Insurance
of the State of New York or under the Insurance Law of the State of New York is
required in connection with the execution, delivery, and performance by the
Company of the Agreements except (a) for those consents, approvals,
authorizations or orders that previously have been obtained and (b) such as may
be required under the blue sky laws of any jurisdiction in connection with the
sale of the Public Offered Certificates or the Private Offered Certificates by
the Underwriters or Placement Agent, as applicable, as to which no opinion is
expressed.
F. To my knowledge, there is no action, suit, investigation, or proceeding
pending or threatened by or against the Company which questions the validity of
the Agreements or any action taken in connection therewith or which, if
adversely determined, would have a material adverse effect upon the ability of
the Company to perform its obligations under, or the validity or enforceability
of, the Agreements.
Neither I nor the Company assume any obligation to advise you of any
changes in the foregoing subsequent to the delivery of this opinion letter. No
opinion shall be inferred or implied beyond the opinions expressly stated in
this letter. This opinion letter has been prepared by me as Associate General
Counsel of the Company, is solely for your use in connection with the Company's
execution and delivery on the date hereof of the Agreements and should not be
filed with any governmental agency or other person or entity or relied upon by
any person or entity that is not an addressee hereto, without the prior written
consent of the Company, except that Dechert, counsel to the Company, may rely on
this opinion in connection with an opinion to be rendered by them of even date
herewith.
Very truly yours,
/s/ Lynne M. Davis
----------------------------------------
Lynne M. Davis
Associate General Counsel, Director
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SCHEDULE A
Structured Asset Securities Corporation II
745 Seventh Avenue
New York, New York 10019
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, New York 10041
Fitch, Inc.
One State Street Plaza
New York, New York 10004
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Wachovia Bank, National Association
8739 Research Drive
URP4 Charlotte, NC 28288
Centerline Servicing, Inc.
5221 North O'Conner Boulevard
Suite 600
Irving, TX 75039
Dates Referenced Herein and Documents Incorporated By Reference
| Referenced-On Page |
|---|
| This 8-K Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 8/11/04 | | 53 |
| | 1/4/06 | | 40 |
| | 7/11/07 | | 2 | | 3 |
| | 7/31/07 | | 28 | | 38 |
| | 8/2/07 | | 2 | | 53 |
| For The Period Ended | | 8/9/07 | | 2 | | 53 |
| Filed On / Filed As Of | | 8/24/07 |
| | 1/31/31 | | 41 |
| |
| Top | | List All Filings |
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