EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of July 1, 2007, between Eurohypo AG, New York Branch, as
seller (the "Seller" or "Eurohypo" and Banc of America Commercial Mortgage Inc.,
as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule"): except that the Seller (i) will transfer the related
master servicing rights (the "Servicing Rights") separately pursuant to the
Agreement to Appointment of Master Servicer, dated as of July 1, 2007, among
BACM, Eurohypo and Bank of America, National Association, in its capacity as
Master Servicer (as defined below); (ii) will transfer the related primary
servicing rights (the "Primary Servicing Rights") separately pursuant to a
servicing rights purchase agreement dated July 1, 2007 between Wachovia Bank,
National Association ("Wachovia") and Eurohypo; and (iii) transferred the master
servicing rights with respect to the ChampionsGate Hotel Pari Passu Whole Loan
and the primary servicing rights with respect to each of the ChampionsGate Hotel
Pari Passu Note A-2 and the JQH Hotel Portfolio Pari Passu Note A-1 to Wachovia
pursuant to an agreement to appointment of master servicer dated July 1, 2007
among Wachovia, as master servicer, X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as depositor, and Eurohypo (the "Wachovia Servicing Rights,"
and collectively with the Master Servicing Rights, the Primary Servicing Rights
and the Wachovia Servicing Rights, the "Servicing Rights").
The Purchaser intends to transfer or cause the transfer of:(i) the
Mortgage Loans; (ii) certain mortgage loans transferred by Bank of America,
National Association ("Bank of America") to the Purchaser pursuant to a mortgage
loan purchase and sale agreement, dated as of the date hereof between Bank of
America and the Purchaser; (iii) certain mortgage loans transferred by Hypo
Public Finance USA, Inc. ("HPF") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between HPF and the
Purchaser and (iv) certain mortgage loans transferred by SunTrust Bank
("SunTrust") to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between SunTrust and the Purchaser, to a
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement (as
defined below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch, Inc. and/or Xxxxx'x Investors Service, Inc.
and/or Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. (collectively, the "Rating Agencies"). Certain classes of the
Certificates (the "Offered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), Midland Loan Services, Inc., as special
servicer (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (in
such capacity, the "Trustee") and as REMIC administrator. Capitalized terms used
but not otherwise defined herein have the respective meanings assigned to them
in the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Commerzbank Capital Markets Corp. ("Commerz"), Hypo
Capital Markets, Inc. ("Hypo Capital"), SunTrust Capital Markets, Inc.
("SunTrust Xxxxxxxx Xxxxxxxx"), Citigroup Global Markets Inc. ("Citigroup") and
Credit Suisse Securities (USA) LLC ("Credit Suisse" and, collectively with BAS,
Commerz, Hypo Capital, SunTrust Xxxxxxxx Xxxxxxxx and Citigroup, the
"Underwriters") pursuant to an underwriting agreement, dated as of July 18, 2007
(the "Underwriting Agreement"). BACM intends to place the remaining Classes of
Certificates (the "Non-Offered Certificates") through BAS, as placement agent
(in such capacity, the "Placement Agent"), pursuant to a private placement
agreement, dated as of July 18, 2007 (the "Private Placement Agency Agreement"),
among BACM and BAS. The Offered Certificates are more fully described in the
prospectus dated June 29, 2007 (the "Base Prospectus"), and the supplement to
the Base Prospectus dated June 29, 2007 (the "Prospectus Supplement"; and,
together with the Base Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The privately offered Non-Offered
Certificates are more fully described in a private placement memorandum, dated
July 18, 2007 (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
The Seller will indemnify the Underwriters, the Placement Agent and
certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of July 18, 2007 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Placement Agent.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase and Sell.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans after the Cut-off Date
and takes into account credits, sales concessions and such other adjustments,
which amount shall be payable on or about July 26, 2007 in immediately available
funds. The Purchaser shall be entitled to all interest accrued on the Mortgage
Loans on and after the Cut-off Date and all principal payments received on the
Mortgage Loans after the Cut-off Date except for principal and interest payments
due and payable on the Mortgage Loans on or before the Cut-off Date, which shall
belong to the Seller.
SECTION 2. Conveyance of the 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 of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with Eurohypo's right, title and
interest in and to any related insurance policies and all other documents in the
related Mortgage Files.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered or caused to be delivered to the Trustee the Mortgage File
for each Mortgage Loan. All Mortgage Files delivered prior to the Closing Date
will be held by the Trustee in escrow at all times prior to the Closing Date.
Each Mortgage File shall contain the documents set forth in the definition of
Mortgage File under the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File; provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent. Notwithstanding the foregoing, with respect to the
ChampionsGate Hotel Pari Passu Mortgage Loan, the "Mortgage File" delivery
requirements shall be met by delivery of copies of the "Mortgage File" (other
than the ChampionsGate Hotel Pari Passu Note A-2 (and all intervening
endorsements), with respect to which the originals shall be required), including
a copy of the related Mortgage.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to 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).
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is licensed and authorized to transact business in
the State of New York as a branch of a foreign bank under Article V of the
Banking Law of the United States.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or 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 agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Breach or Material Document Defect, as the case may be, is
capable of being corrected or cured but not within the applicable Initial
Resolution Period, (iii) that 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 (iv) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be corrected or cured within an additional period not to
exceed the Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such correction or cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, if the Seller's obligation to repurchase
any Defective Mortgage Loan as a result of a Material Breach or Material
Document Defect arises within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan 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 Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero days;
provided, however, if the Seller did not receive written notice from the
Master Servicer or the Special Servicer of the relevant Servicing Transfer
Event as of the commencement of the applicable Initial Resolution Period,
then such Servicing Transfer Event shall be deemed to have occurred during
such Initial Resolution Period and the immediately preceding clause (iii)
of this definition will be deemed to apply.
In addition, the Seller shall have an additional 90 days to cure
such Material Document Defect or Material Breach, provided that the Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach and such failure to cure is solely the result of a
delay in the return of documents from the local filing or recording authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Mortgage Loan or affected Mortgaged
Property or, in the case of a Cross-Collateralized Mortgage Loan, forbear from
enforcing any remedies against the other's Primary Collateral (as defined
below), but each is permitted to exercise remedies against the Primary
Collateral securing its respective affected Cross-Collateralized Mortgage Loans
or Mortgaged Properties, including, with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Cross-Collateralized Mortgage Loans or
Mortgaged Properties held by such party, then both parties shall forbear from
exercising such remedies until the related Mortgage Loan documents can be
modified to remove the threat of impairment as a result of the exercise of
remedies. "Primary Collateral" shall mean the Mortgaged Property directly
securing a Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective 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.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
the 90th day following the Closing Date, the Seller shall reconfirm its
obligation to complete such Mortgage File and to correct all deficiencies
associated therewith, and, if it fails to do so within 45 days after its
receipt of such notice, the Seller shall deliver to the Purchaser or its
designee a limited power of attorney (in a form reasonably acceptable to
the Seller and the Purchaser) permitting the Purchaser or its designee to
execute all endorsements (without recourse) and to execute and, to the
extent contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or 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 agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and the Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and 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;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Private Placement Agency Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Each party agrees to use its commercially reasonable best efforts to
perform its respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of corporate existence regarding the Seller from the
State of New York Banking Department, dated not earlier than 30 days prior to
the Closing Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Placement Agent may rely to the effect
that (i) the representations and warranties of the Seller in the Agreement are
true and correct in all material respects at and as of the date hereof with the
same effect as if made on the date hereof, and (ii) the Seller has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Agreement to be performed or satisfied
at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Placement Agent, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Placement Agent and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any free writing prospectus, Prospectus Supplement and Memorandum,
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the free writing prospectus and
the Prospectus Supplement and to the Purchaser and the Placement Agent in the
case of the Memorandum stating in effect that, using the assumptions and
methodology used by the Purchaser, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to the
Mortgage Loans set forth in any free writing prospectus, the Prospectus
Supplement and the Memorandum, compared the results of their calculations to the
corresponding items in any free writing prospectus, the Prospectus Supplement
and the Memorandum, respectively, and found each such number and percentage set
forth in any free writing prospectus, the Prospectus Supplement and the
Memorandum, respectively, to be in agreement with the results of such
calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to
Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Eurohypo AG, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, or to such other addresses
as may hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
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.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. 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 or other entity 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. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. 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.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other than
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. 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. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loans (each a "Cross-Collateralized Set"), by their
terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized Set
is identified on the Mortgage Loan Schedule. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Set only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized Set
shall be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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.
EUROHYPO AG, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan Number Loan Seller Property Name
-------- ----------- ----------- ---------------------------------------------
9 100 Eurohypo HPI - GSA Portfolio (Rollup)
9.1 100.10 Eurohypo 0000 Xxxxxx Xxxxx Office Building
9.2 100.02 Eurohypo Immigration & Naturalization Services
9.3 100.01 Eurohypo U.S Treasury Financial Management
9.4 100.03 Eurohypo Social Security Administration Building
9.5 100.09 Eurohypo U.S. Courthouse
9.6 100.04 Eurohypo IRS Files Building
9.7 100.06 Eurohypo USDA Forest Service Building
9.8 100.05 Eurohypo Corps of Engineers
9.9 100.08 Eurohypo Xxxxxxxx Federal Building
9.10 100.07 Eurohypo U.S. National Parks Service
10 200 Eurohypo JQH Hotel Portfolio (Rollup)
10.1 200.01 Eurohypo Embassy Suites-Franklin
10.2 200.03 Eurohypo Renaissance Xxxxxx Xxxxxxxxxx Hotel
10.3 200.05 Eurohypo Embassy Suites-St. Xxxxxxx
10.4 200.04 Eurohypo Residence Inn by Marriott
10.5 200.02 Eurohypo Courtyard by Marriott
12 300 Eurohypo Xxxxxx Xxxxx 3
15 400 Eurohypo ChampionsGate Hotel
28 500 Eurohypo 000 0xx Xxx
30 600 Eurohypo Cranberry Commons
35 000 Xxxxxxxx Xxxxxxxxx Xxxxx
38 800 Eurohypo Garin Ranch
42 900 Eurohypo 0000-0000 Xxxxx Xxx
44 1000 Eurohypo Argosy Apartments
54 1100 Eurohypo 000 Xxxxxxxxxxx Xxxxxx
71 1200 Eurohypo Aspen Gardens
74 1400 Eurohypo Xxxxxxx (Rollup)
74.1 1400.01 Eurohypo 00 Xxxxxxx Xxxxxx
74.2 1400.02 Eurohypo 0 Xxxxx Xxxx
75 1300 Eurohypo Huntsville Office & Retail Portfolio (Rollup)
75.1 1300.01 Eurohypo 0000 Xxxxxx Xxxxx
75.2 1300.02 Eurohypo Staples Center
80 1500 Eurohypo Bella Vista Apartments
92 1600 Eurohypo 00 Xxxxx Xxxxx
107 1700 Eurohypo Convention Center Garage
110 1800 Eurohypo 000-000 Xxxx 000xx Xxxxxx
114 2000 Eurohypo 0000 Xxxx Xxxxxxx Xxxxx
115 1900 Eurohypo 5661-5669 Xxxxxxxx
000 0000 Xxxxxxxx Xxxxxx Xxxxxx
133 2200 Eurohypo 00 X Xxxx Xxxxxx
Total
Sequence Street Address City State Zip Code Mortgage Rate
-------- ---------------------------------------------------- ------------------ ------- -------- -------------
9 Various Various Various Various 5.620%
9.1 0000 Xxxxxx Xxxxx Xxxxxx Xxxx XX 00000
9.2 000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
9.3 00000 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
9.4 000 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000
9.5 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
9.6 0000 X Xxxxxx Xxxxxx XX 00000
9.7 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
9.8 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
9.9 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
9.10 000 Xxxxxx Xxxx Xxxxx Xxxx XX 00000
10 Various Various Various Various 5.701%
10.1 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
10.2 000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
10.3 Xxx Xxxxxxxxxx Xxxxxx Xxxxx Xx. Xxxxxxx XX 00000
10.4 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
10.5 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
12 00000 Xxxx Xxx Xxxxxx Xxxxxx Xxxxx XX 00000 5.472%
15 1400 & 0000 Xxxxxxx Xxxxxxxxx XxxxxxxxxXxxx XX 00000 6.720%
28 000 0xx Xxxxxx Xxx Xxxx XX 00000 5.508%
30 1659, 1691, 1713 and 0000 Xxxxx 000 Xxxxxxxxx Xxxxxxxx XX 00000 5.614%
35 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 6.010%
38 8610, 8630, 8640, 8650, and 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 5.910%
42 0000-0000 Xxxxx Xxxxxx Xxx Xxxx XX 00000 6.725%
44 0000 Xxxxxx Xxxx Xxxxxx XX 00000 5.490%
54 000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.654%
71 000 Xxxxxxx Xxxx Xxx Xxxxxxxxx XX 00000 5.740%
74 Xxxxxxx Xxxxxxx XX 00000 5.654%
74.1 00 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
74.2 0 Xxxxx Xxxx Xxxxxxxxxx XX 00000
75 Various Huntsville AL Various 5.842%
75.1 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
75.2 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
80 000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 5.720%
92 00 Xxxxx Xxxxx Xxxxxxxxxx XX 00000 5.654%
107 000 Xxxxx 0xx Xxxxxx Xx. Xxxxx XX 00000 6.113%
110 000-000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 5.911%
114 0000 Xxxx Xxxxxxx Xxxxx Xxx Xxxxxxxxx XX 00000 5.807%
115 0000-0000 Xxxxxxxx Xxxxx XX 00000 5.790%
126 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 5.904%
133 00 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 5.630%
Sequence Amortization Basis Original Balance Cut-off Date Balance Remaining Term To Stated Maturity (months)
-------- ------------------ ---------------- -------------------- ------------------------------------------
9 Actual/360 125,000,000 125,000,000 118
9.1 43,595,607 43,595,607
9.2 14,664,389 14,664,389
9.3 14,502,155 14,502,155
9.4 11,500,000 11,500,000
9.5 10,520,082 10,520,082
9.6 8,038,462 8,038,462
9.7 7,779,057 7,779,057
9.8 7,608,980 7,608,980
9.9 3,596,379 3,596,379
9.10 3,194,890 3,194,890
10 Actual/360 100,000,000 100,000,000 118
10.1 33,066,667 33,066,667
10.2 29,333,333 29,333,333
10.3 16,200,000 16,200,000
10.4 11,866,667 11,866,667
10.5 9,533,333 9,533,333
12 Actual/360 58,400,000 58,400,000 57
15 Actual/360 50,000,000 50,000,000 103
28 Actual/360 22,000,000 22,000,000 118
30 Actual/360 21,450,000 21,450,000 117
35 Actual/360 17,300,000 17,300,000 58
38 Actual/360 16,750,000 16,750,000 56
42 Actual/360 15,000,000 15,000,000 60
44 Actual/360 14,000,000 14,000,000 59
54 Actual/360 10,600,000 10,600,000 118
71 Actual/360 9,440,000 9,440,000 116
74 Actual/360 9,000,000 9,000,000 118
74.1 4,837,004 4,837,004
74.2 4,162,996 4,162,996
75 Actual/360 9,000,000 9,000,000 119
75.1 5,750,000 5,750,000
75.2 3,250,000 3,250,000
80 Actual/360 8,400,000 8,400,000 117
92 Actual/360 7,500,000 7,500,000 118
107 Actual/360 6,000,000 6,000,000 119
110 Actual/360 5,100,000 5,100,000 58
114 Actual/360 4,600,000 4,600,000 117
115 Actual/360 4,600,000 4,600,000 119
126 Actual/360 4,200,000 4,200,000 59
133 Actual/360 3,500,000 3,500,000 116
$521,840,000
Sequence Stated Maturity Date Due Date Monthly Payment Administrative Fee Rate Primary Servicing Fee Rate
-------- -------------------- -------- --------------- ----------------------- --------------------------
9 5/6/2017 Sixth 593,547.45 0.021% 0.010%
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
10 5/6/2017 Sixth 481,681.71 0.021% 0.010%
10.1
10.2
10.3
10.4
10.5
12 4/6/2012 Sixth 270,002.67 0.021% 0.010%
15 2/1/2016 First 323,302.58 0.021% 0.010%
28 5/1/2017 First 102,382.50 0.021% 0.010%
30 4/6/2017 Sixth 101,744.00 0.021% 0.010%
35 5/6/2012 Sixth 87,847.56 0.021% 0.010%
38 3/6/2012 Sixth 83,639.50 0.021% 0.010%
42 7/1/2012 First 85,230.03 0.021% 0.010%
44 6/1/2012 First 64,939.58 0.021% 0.010%
54 5/7/2017 Seventh 61,213.80 0.021% 0.010%
71 3/6/2017 Sixth 55,029.32 0.021% 0.010%
74 5/7/2017 Seventh 51,973.98 0.021% 0.010%
74.1
74.2
75 6/6/2017 Sixth 53,048.73 0.021% 0.010%
75.1
75.2
80 4/6/2017 Sixth 48,860.15 0.021% 0.010%
92 5/7/2017 Seventh 43,311.65 0.021% 0.010%
107 6/6/2017 Sixth 36,410.08 0.021% 0.010%
110 5/6/2012 Sixth 25,470.66 0.021% 0.010%
114 4/6/2017 Sixth 22,569.34 0.021% 0.010%
115 6/6/2017 Sixth 22,503.26 0.021% 0.010%
126 6/6/2012 Sixth 20,951.00 0.021% 0.010%
133 3/6/2017 Sixth 16,648.90 0.021% 0.010%
Sequence Master Servicing Fee Rate Ownership Interest Cross-Collateralized Loans Original Amortization (months)
-------- ------------------------- ------------------ -------------------------- ------------------------------
9 0.010% Fee/Leasehold No 0
9.1 Fee
9.2 Fee
9.3 Fee
9.4 Fee
9.5 Leasehold
9.6 Fee/Leasehold
9.7 Leasehold
9.8 Fee
9.9 Fee/Leasehold
9.10 Fee
10 0.010% Fee/Leasehold No 0
10.1 Fee
10.2 Fee
10.3 Leasehold
10.4 Fee
10.5 Fee
12 0.010% Fee No 0
15 0.010% Fee/Leasehold No 360
28 0.010% Fee No 0
30 0.010% Fee No 0
35 0.010% Fee No 0
38 0.010% Fee No 0
42 0.010% Fee No 0
44 0.010% Fee No 0
54 0.010% Fee No 360
71 0.010% Fee No 360
74 0.010% Fee No 360
74.1 Fee
74.2 Fee
75 0.010% Fee No 360
75.1 Fee
75.2 Fee
80 0.010% Fee No 360
92 0.010% Fee No 360
107 0.010% Fee No 360
110 0.010% Fee No 0
114 0.010% Fee No 0
115 0.010% Fee No 0
126 0.010% Fee No 0
133 0.010% Fee No 0
Sequence ARD Loan Grace Period Loan Group
-------- -------- ------------ ----------
9 No 0 1
9.1 1
9.2 1
9.3 1
9.4 1
9.5 1
9.6 1
9.7 1
9.8 1
9.9 1
9.10 1
10 No 0 1
10.1 1
10.2 1
10.3 1
10.4 1
10.5 1
12 Xx 0 0
00 Xx 0 0
00 Xx 5 1
30 Xx 0 0
00 Xx 0 0
00 Xx 0 1
42 No 5 1
44 No 5 2
54 Xx 0 0
00 Xx 0 0
00 Xx 0 1
74.1 1
74.2 1
75 No 0 1
75.1 1
75.2 1
80 Xx 0 0
00 Xx 0 0
000 Xx 0 1
110 Xx 0 0
000 Xx 0 0
000 Xx 0 1
126 No 0 2
133 No 0 1
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except as enforcement may be limited by bankruptcy and principles of
equity and, in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized
Group; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property (to the extent that a filing of such a UCC
Financing Statement can perfect such a security interest). An
assignment of each UCC Financing Statement relating to the Mortgage
Loan has been delivered by Seller in blank which the Purchaser or
Trustee, as applicable, or designee is authorized to complete and to
file in the filing office in which such UCC Financing Statement was
filed. Each Mortgage Loan and the related Mortgage (along with any
security agreement and UCC Financing Statement), together with
applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the personal property
described above, and the principal benefits of the security intended
to be provided thereby; provided, if the related security agreement
and/or UCC Financing Statement has been recorded in the name of MERS
or its designee, no assignment of security agreement and/or UCC
Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Seller shall take all actions
as are necessary to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Notwithstanding the foregoing, no representation
is made as to the perfection of any security interest in rents or
any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan, there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. All
such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be
reduced) without 30 days' prior written notice to the mortgagee (or,
with respect to nonpayment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as
described above or permits the mortgagee to require insurance as
described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. The Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy
will (or, at the lender's option, will) be applied either to the
repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the
related Mortgage may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the
Mortgage Loan; and provided, further, that, if the related Borrower
holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more property condition
or engineering reports (relating to lead-based paint, asbestos and
radon gas) or environmental site assessments meeting the
requirements of the American Society for Testing and Materials in
effect at the time the related report was or the related reports
were prepared covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such
an assessment, was performed by an experienced licensed (to the
extent required by applicable state law) environmental consulting
firm with respect to each Mortgaged Property securing a Mortgage
Loan in connection with the origination of such Mortgage Loan and
thereafter updated such that, (a) such Environmental Report is dated
no earlier than twelve months prior to the Closing Date, (b) a copy
of each such Environmental Report has been delivered to the
Purchaser; and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of
any applicable environmental laws with respect to any circumstances
or conditions relating to the related Mortgaged Property; or (ii) if
any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the
same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related
to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or
circumstance, (B) the related Mortgagor was required to provide
additional security adequate to cure the subject violation in all
material respects and to obtain an operations and maintenance plan,
(C) such conditions or circumstances were investigated further and
based upon such additional investigation, an independent
environmental consultant recommended no further investigation or
remediation, or recommended only the implementation of an operations
and maintenance program, which the Mortgagor is required to do, (D)
there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (E) the
related Mortgaged Property is insured under a policy of insurance
against losses arising from such circumstances and conditions, (F)
the circumstance or condition has been fully remediated, (G) the
related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such
condition or circumstance, (H) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser
of (a) 2% of the outstanding principal balance of the related
Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another
responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority, or (J) a
responsible party with financial resources reasonably adequate to
cure the violation provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are
no significant or material circumstances or conditions with respect
to any Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Mortgagor questionnaire delivered
to Seller at the issue of any related environmental insurance
policy, if applicable, that render such Mortgaged Property in
material violation of any applicable environmental laws. The
Mortgage, or other Loan Document in the Mortgage File, for each
Mortgage Loan encumbering the Mortgaged Property requires the
related Mortgagor to comply and cause the Mortgaged Property to
comply with all applicable federal, state and local environmental
laws and regulations. The Seller has not taken any action which
would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards or
which could subject the Seller or its successors and assigns to
liability under such laws. Each Mortgagor represents and warrants in
the related Loan Documents generally to the effect that except as
set forth in certain specified environmental reports and to the best
of its knowledge that as of the date of origination of such Mortgage
Loan, there were no hazardous materials on the related Mortgaged
Property, and that the Mortgagor will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials, in
any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend
and hold the Seller and its successors and assigns harmless from and
against, or otherwise be liable for, any and all losses resulting
from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage
Loan, generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization (except as disclosed in the Prospectus Supplement) or
for the negative amortization of interest, except that, in the case
of an ARD Loan, such Mortgage Loan provides that, during the period
commencing on or about the related Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be
payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) subject to available funds, a portion of
the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to
the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Mortgagor under the Mortgage Loan or
otherwise nor holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since April 23, 2007. The
Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage. The terms of the related Mortgage do not
provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than 125% of the related
allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of
such Mortgage Loan, (c) Mortgage Loans which permit defeasance by
means of substituting for the Mortgaged Property (or, in the case of
a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to
pay the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) either through and including
the maturity date of the Mortgage Loan or to the first date that the
Borrower can prepay the Mortgage Loan without prepayment premium,
and in the case of ARD Loans, assuming the Anticipated Repayment
Date is the Stated Maturity Date. Further, the Mortgage or other
related Loan Document contained in the Mortgage File requires that
an independent certified public accountant certify that such
government securities are sufficient to make all such scheduled
payments when due. To Seller's actual knowledge, defeasance under
the Mortgage Loan is only for the purpose of facilitating the
release of the Mortgaged Property and not as a part of an
arrangement to collateralize a REMIC with obligations that are not
real estate mortgages. With respect to each Defeasance Loan, the
related Mortgage or other related Loan Document provides that the
related Mortgagor shall (or permits the mortgagee to require the
Mortgagor to) (a) pay all Rating Agency fees associated with
defeasance (if Rating Agency approval is a specific condition
precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and
opinions of counsel, or (b) provide all opinions reasonably required
by the mortgagee under the related Loan Documents, including, if
applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Balance
equal to or greater than $20,000,000, the Mortgage Loan or the
related documents require (or permit the mortgagee to require)
confirmation from the Rating Agency that exercise of the defeasance
option will not cause a downgrade or withdrawal of the rating
assigned to any securities backed by the Mortgage Loan and require
(or permit the mortgagee to require) the Mortgagor to pay any Rating
Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a
legal non-conforming use or structure, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide,
and/or which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified
under applicable law to serve as such, has either been properly
designated and currently so serves or may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
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 or such material licenses and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20,000,000 shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the
related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted
a reasonable opportunity (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 written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender; and 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 any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage Loans
secured by Ground Leases, each of the Mortgagors (or its affiliates) has
title in the fee simple interest in each related Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal; if any ARD Loan is not paid in full by its Anticipated
Repayment Date, and assuming that it is not otherwise in default, the rate
at which such Mortgage Loan accrues interest will increase to the sum of
the original Mortgage Rate and a specified margin not less than 2 percent
(2%); the Anticipated Repayment Date of any such Mortgage Loan is not less
than 7 years from the date of origination; and after the Anticipated
Repayment Date, the Loan Documents provide that excess cash flow after
payment of expenses, including scheduled interest and capital expenditures
approved by the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. 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.
(48) No Negative Amortization; No Capital Contribution; No Financing
for Incomplete Improvements. No Mortgage Loan, other than an ARD Loan (and
then only after the Anticipated Repayment Date for such ARD Loan),
provides for the negative amortization of interest. Neither the Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan. The Mortgage Loan was not
originated for the purpose of financing the construction of incomplete
improvements on the related Mortgaged Property other than tenant
improvements.
(49) No Fraud. Neither the Seller, the originator, nor any employee
or agent of the Seller or the originator has participated in any fraud or
intentional material misrepresentation with respect to the Mortgagor, the
Mortgaged Property or any guarantor. To Seller's actual knowledge, no
Mortgagor or guarantor is guilty of defrauding or making an intentional
material misrepresentation to the Seller with respect to the origination
of the Mortgage Loan, the Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for delinquent Monthly Payments no longer than 10 days from
the applicable Due Date other than as disclosed in the Mortgage Loan
Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or the Mortgagor or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan; the appraisal or a supplemental
letter from the appraiser states that the appraisal satisfies the
appraisal guidelines set forth in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (as amended), all as in
effect on the date the Mortgage Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the Prospectus
Supplement, (a) no Mortgagor is the Mortgagor with respect to more than
one Mortgage Loan and (b) to the Seller's knowledge, no group of Mortgage
Loans with affiliated Mortgagors have an aggregate principal balance
equaling more than $366,059,373.
(53) Environmental Insurance Policies. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor environmental
insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to
the insurer under such policy the "pollution conditions" (as
defined in such policy) identified in any environmental
reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports
in the Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent
required by such policy or to the extent the failure to make
any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of the
Mortgage Loan (or 5 years beyond the Anticipated Repayment Date with
respect to an ARD Loan) and is not cancelable during such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and the
environmental insurance for such Mortgage Loan is not a secured
creditor policy but was required to be obtained by the Mortgagor,
then the holder of the Mortgage Loan is entitled to be an additional
insured under such policy, all premiums have been paid, such
insurance is in full force and effect, such policy may not be
cancelled or amended without the consent of the Seller or its
successors and assigns and, to the Seller's knowledge, the Mortgagor
has made the disclosures and complied with the requirements of
clauses (a) and (b) of this Paragraph (53).
(54) Access. The Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting ingress
and egress.
SCHEDULE IIA
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Note: The Mortgage Loan known as Xxxxxx Xxxxx 3 is structured with the related
promissory note secured by a guaranty agreement (rather than a deed of trust),
which guaranty agreement from the related property owner, in favor of the lender
covers all of the obligations under the related promissory note. All of the
obligations under the related guaranty agreement are secured by an indemnity
deed of trust ("IDOT"). With respect to certain of the representation and
warranties, with respect to these Mortgage Loans, statements regarding the
borrower relate to the guarantor, as the owner of the respective Mortgaged
Property.
--------------------------------------------------------------------------------
Mortgage Loan Exception
--------------------------------------------------------------------------------
Exceptions to Representation (3) Good Title; Conveyance.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
With respect to one of the Mortgaged
Properties (the Embassy Suites -
Hilton), such Mortgaged Property is
subject to a right of first offer to
purchase the Mortgaged Property in
favor of the related franchisor in
the event that the borrower markets
such Mortgaged Property for sale or
receives an offer from a third party.
With respect to two of the Mortgaged
Properties (the Residence Inn -
Marriot and the Courtyard by
Marriot), each such Mortgaged
Property is subject to a purchase
option (at fair market value) in
favor of the related franchisor in
the event that a competing franchise
attempts to purchase the related
Mortgaged Property or a controlling
interest in the related borrower.
With respect to one of the Mortgaged
Properties (the Renaissance -
Marriot), the Mortgaged Property is
subject to: (i) a purchase option (at
fair market value) in favor of the
prior owner in the event that the
borrower fails to operate the
Mortgaged Property as a hotel for 2
months in any 24-month period (such
failure would also be an event of
default under the Loan Documents);
and (ii) a purchase option (at fair
market value) in favor of the related
franchisor in the event that the a
competing franchise attempts to
purchase the related Mortgaged
Property or a controlling interest in
the borrower.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
--------------------------------------------------------------------------------
Loan No. 2000 (1701 Lake Xxxxxxx Drive) The Mortgaged Property is subject to
a right of first offer to purchase
the Mortgaged Property in favor of
Town Center Development Company,
L.P. that has been subordinated to
the Mortgage Loan and accordingly,
will not affect the lender's rights
to foreclose, but such right is not
subordinated to a subsequent
transfer by a purchaser at a
foreclosure sale.
--------------------------------------------------------------------------------
Exceptions to Representation (6) Assignment of Leases and Rents.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
--------------------------------------------------------------------------------
Exceptions to Representation (9) Mortgage Lien.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
With respect to one of the Mortgaged
Properties (the Embassy Suites -
Hilton), such Mortgaged Property is
subject to a right of first offer to
purchase the Mortgaged Property in
favor of the related franchisor in
the event that the borrower markets
such Mortgaged Property for sale or
receives an offer from a third party.
With respect to two of the Mortgaged
Properties (the Residence Inn -
Marriot and the Courtyard by
Marriot), each such Mortgaged
Property is subject to a purchase
option (at fair market value) in
favor of the related franchisor in
the event that a competing franchise
attempts to purchase the related
Mortgaged Property or a controlling
interest in the related borrower.
With respect to one of the Mortgaged
Properties (the Renaissance -
Marriot), the Mortgaged Property is
subject to: (i) a purchase option (at
fair market value) in favor of the
prior owner in the event that the
borrower fails to operate the
Mortgaged Property as a hotel for 2
months in any 24-month period (such
failure would also be an event of
default under the Loan Documents);
and (ii) a purchase option (at fair
market value) in favor of the related
franchisor in the event that the a
competing franchise attempts to
purchase the related Mortgaged
Property or a controlling interest in
the borrower.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a pari passu A-note.
--------------------------------------------------------------------------------
Loan No. 2000 (1701 Lake Xxxxxxx Drive) The Mortgaged Property is subject to
a right of first offer to purchase
the Mortgaged Property in favor of
Town Center Development Company,
L.P. that has been subordinated to
the Mortgage Loan and accordingly,
will not affect the lender's rights
to foreclose, but such right is not
subordinated to a subsequent
transfer by a purchaser at a
foreclosure sale.
--------------------------------------------------------------------------------
Condition of Property; No
Exceptions to Representation (12) Condemnation; No Encroachments.
--------------------------------------------------------------------------------
Loan No. 700 (Nantucket Creek) A footbridge, with respect to which
an easement was obtained from the
Los Angeles County Flood Control
District, which connects two
portions of the Mortgaged Property
is not currently located within the
prescribed easement area. The
related title insurance
affirmatively covers the footbridge.
In addition, the Loan Documents
require the borrower to obtain the
appropriate easement within one year
of origination.
--------------------------------------------------------------------------------
Exceptions to Representation (13) Title Insurance.
--------------------------------------------------------------------------------
Loan No. 100 (HPI - GSA Portfolio) With respect to one of the Mortgaged
Properties securing the Mortgage
Loan (the Mortgaged Property located
in Philadelphia, Pennsylvania), the
Mortgaged Property is insured for
120% of the allocated loan amount.
--------------------------------------------------------------------------------
Exceptions to Representation (14) Insurance.
--------------------------------------------------------------------------------
Loan No. 100 (HPI - GSA Portfolio) The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 1.5 times the amount of the
then-current annual premium for the
all-risk coverage provided that, if
(i) terrorism insurance is
customarily maintained by owners
and/or operators of office buildings
in the same class as each individual
Mortgaged Property in the region in
which such Mortgaged Property is
located are generally obtaining
terrorism insurance, (ii) lenders
financing office buildings in the
same class as each individual
Mortgaged Property in the region in
which such Mortgaged Property are
generally requiring terrorism
insurance as a condition to such
financing or (iii) the borrower or
its affiliates are obtaining
terrorism insurance on any other
office buildings in the same class
as each individual Mortgaged
Property in the region in which such
Mortgaged Property, then the
borrower will be required to
maintain such terrorism insurance,
regardless of the cost of the
related insurance premiums.
Loan No. 200 (JQH Hotel Portfolio) The borrower is permitted to
maintain insurance provided by a
syndicate of insurers, provided that
the insurers with respect to such
insurance shall be acceptable if:
(i) the first layer of coverage
under such insurance shall be
provided by carriers with minimum
ratings from each of the S&P,
Xxxxx'x and Fitch (or such rating
agencies rating the Certificates
backed by the Mortgage Loan) of "A-"
or its equivalent; (ii) 60% (75% if
there are 4 or fewer members in the
syndicate) of the aggregate limits
under such policies must be provided
by carriers with a claims-paying
ability of "A-" or its equivalent;
(iii) all carriers have
claims-paying ability ratings of at
least "BBB;" and (iv) any coverage
provided by carriers having ratings
lower than "A-" or its equivalent by
each of S&P, Xxxxx'x and Fitch (or
such rating agencies rating the
Certificates backed by the Mortgage
Loan) will be required to be excess
coverage with respect to the
required coverage provided by
insurers having ratings of at least
"A-" or its equivalent.
The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 2 times the amount of the
annual premium for the all-risk
coverage and business income coverage
during the immediately preceding
calendar year.
--------------------------------------------------------------------------------
Loan No. 300 (Xxxxxx Xxxxx 3) The borrower is permitted maintain
earthquake insurance, worker's
compensation and motor vehicle
insurance coverage pursuant to
policies issued by either (A) one or
more financially sound and
responsible insurance companies
authorized to do business in the
state in which the Mortgaged
Property is located and having a
claims paying ability rating of "A-"
or better by S&P or (B) a syndicate
of insurers through which (1) at
least fifty percent (50%) of claims
coverage shall be with one or more
carriers having a
claims-paying-ability rating of not
less than "A-" by S&P or by A.M.
Best of "A-IX" or better, (2)
subject to the requirements set
forth in the insurance provisions of
the Loan Documents, at least ninety
percent (90%) of claims coverage
(inclusive of the coverage provided
by carriers described in (1) above)
shall be with one or more carriers
having a claims paying ability
rating by A.M. Best of "A-VIII" or
better, (3) the balance of the
coverage not to exceed ten percent
(10%) of claims coverage is with one
or more carriers having a claims
paying ability rating by A.M. Best
of "A-VII" or better and (4) with
regard to any insurance carrier
which has a claims-paying-ability
rating by A.M. Best of less than
"A-IX", such carrier may not
represent more than five percent
(5%) of the total earthquake
insurance.
The borrower is permitted to maintain
commercial general liability
insurance coverage issued by either
(A) one or more financially sound and
responsible insurance companies
authorized to do business in the
state in which the Mortgaged Property
is located and having a
claims-paying-ability rating by (1)
S&P not lower than "A-" or (2) A.M.
Best of "A-IX" or (B) a syndicate of
insurers through which at least sixty
percent (60%) of the coverage is with
carriers having a claims
paying-ability rating by S&P not
lower than "BBB" or by A.M. Best not
lower than "A:IX" and which syndicate
may include Factory Mutual Insurance
Company so long as Factory Mutual
Insurance Company has (i) a claims
paying ability rating of not lower
than "A-" by Fitch and "A:IX" by A.M.
Best and (ii) a claims-paying ability
rating by S&P based solely on public
information of not lower than "BBBpi"
(the "Factory Mutual
Qualifications").
The borrower is permitted to maintain
all risk, flood insurance, business
income insurance, builder's risk
insurance, comprehensive boiler and
machinery insurance and terrorism
insurance coverage with either (A)
one or more financially sound and
responsible insurance companies
authorized to do business in the
state in which the Mortgaged Property
is located and having a
claims-paying-ability rating by S&P
not lower than "A-" or by A.M. Best
not lower than "A:IX" or (B) a
syndicate of insurers through which
at least sixty percent (60%) of the
coverage (if there are 4 or fewer
members of the syndicate) or at least
fifty percent (50%) of the coverage
(if there are 5 or more members of
the syndicate) is with carriers
having a claims-paying-ability rating
by S&P not lower than "A-" or by A.M.
Best not lower than "A:IX" and the
balance of the coverage is, in each
case, with insurers having a
claims-paying-ability rating by S&P
of not lower than "BBB" or by A.M.
Best not lower than "A:IX", provided
that in each case, the first loss
risk is borne by the carriers having
a claims-paying-rating by S&P of not
lower than "A-" or by A.M. Best not
lower than "A:IX" and which syndicate
may include Factory Mutual Insurance
Company so long as Factory Mutual
Insurance Company satisfies the
Factory Mutual Qualifications, and
(2) the flood hazard insurance
coverage described in the Loan
Documents with any insurance company
authorized by the United States
government to issue such insurance
provided such flood hazard insurance
is reinsured by the United States
government.
If the borrower's insurers or
reinsurance carriers fail to provide
or maintain the ratings set forth in
the insurance section of the Loan
Documents, the borrower may satisfy
the applicable ratings requirement of
such section by providing to the
lender a "cut-through" endorsement in
form and substance approved by the
lender issued by an insurer
satisfactory to the lender or by such
other credit enhancement or guaranty
by such other person, in each event
satisfactory to the lender and the
rating agencies.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) The borrower is only required to
obtain and maintain such terrorism
insurance coverage as is available
for an amount no greater than
$377,600 (which amount represents
two times the annual premium that
would be paid by the borrower for
commercial property and business
income coverage as of the
origination date, exclusive of
terrorism insurance); provided that,
if the lender reasonably determines
that (i) terrorism insurance is
customarily maintained by owners
and/or operators of hotel properties
in Orlando, Florida, (ii) lenders
financing hotel properties in
Orlando, Florida are generally
requiring terrorism insurance as a
condition to such financing or (iii)
the borrower or its affiliates are
obtaining terrorism insurance on any
other hotel properties which the
borrowers or its affiliates own or
operate in central Florida, then the
borrower will be required to
maintain such terrorism insurance,
regardless of the cost of the
related insurance premiums.
The borrower has procured windstorm
insurance of up to $50,000,000 per
occurrence, under a blanket policy,
with a guaranty for the deductible.
However, the borrower is only
required to maintain insurance
against loss or damage incurred as a
result of a windstorm, hurricane or
similar weather to the extent such
insurance (a) is commercially
available to owners and/or operators
of first class hotels in Orlando,
Florida, (b) can be obtained at a
commercially reasonable cost and (c)
does not exceed the coverage limits
and deductible amounts generally
required by lenders financing first
class hotels in Orlando, Florida.
--------------------------------------------------------------------------------
Loan No. 800 (Garin Ranch) The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 2.5 times the amount of the
annual premium for the all-risk
coverage; provided that, if (i)
terrorism insurance is customarily
maintained by owners and/or
operators of business centers in the
same class as the Mortgaged Property
in Contra Costa County, California,
(ii) lenders financing business
centers in the same class as the
Mortgaged Property in Contra Costa
County, California are generally
requiring terrorism insurance as a
condition to such financing or (iii)
the borrower or its affiliates are
obtaining terrorism insurance on any
other hotel properties which the
borrowers or its affiliates own or
operate in Contra Costa County,
California, then the borrower will
be required to maintain such
terrorism insurance, regardless of
the cost of the related insurance
premiums.
--------------------------------------------------------------------------------
Loan No. 500 (252 Seventh Avenue) The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 1.5 times the amount of the
annual premium for the all-risk
coverage; provided that, if (i)
terrorism insurance is customarily
maintained by owners and/or
operators of hotel properties in New
York, New York, (ii) lenders
financing retail properties in New
York, New York are generally
requiring terrorism insurance as a
condition to such financing or (iii)
the borrower or its affiliates are
obtaining terrorism insurance on any
other hotel properties which the
borrowers or its affiliates own or
operate in New York, New York, then
the borrower will be required to
maintain such terrorism insurance,
regardless of the cost of the
related insurance premiums.
--------------------------------------------------------------------------------
Loan No. 600 (Cranberry Commons) The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 2 times the amount of the
annual premium for the all-risk
coverage; provided that, if (i)
terrorism insurance is customarily
maintained by owners and/or
operators of similar retail
properties in Pennsylvania, (ii)
lenders financing similar retail
properties in Pennsylvania are
generally requiring terrorism
insurance as a condition to such
financing or (iii) the borrower
principal (Kimco Realty Corporation)
or its affiliates are obtaining
terrorism insurance on any other
similar properties which it or its
affiliates own or operate in
Pennsylvania, then the borrower will
be required to maintain such
terrorism insurance, regardless of
the cost of the related insurance
premiums.
--------------------------------------------------------------------------------
Loan No. 100 (Argosy Apartments) The borrower is not required to
obtain and maintain terrorism
insurance in an amount greater than
the amount of terrorism insurance
that is available for an annual
premium 8.0 times the amount of the
annual premium for terrorism
insurance that is at least
equivalent to the terrorism
insurance required at origination.
The terrorism cap does not apply if
(A) owners and/or operators of
multi-family apartment complexes in
the same class as the Mortgaged
Property in or around the region in
which the Mortgaged Property is
located are generally obtaining
terrorism insurance, (B) lenders
financing such multi-family
apartment complexes in the same
class as the Mortgaged Property in
or around the region in which the
Mortgaged Property is located are
generally requiring terrorism
insurance as a condition of
financing, or (C) the borrower or
any affiliates of the borrower or
any transferee of the borrower or
any of its affiliates, is obtaining
terrorism insurance on any other
properties in or around the region
in which the Mortgaged Property is
located which any of the foregoing
persons own or operate.
--------------------------------------------------------------------------------
Exception to Representation (19) Environmental Conditions.
--------------------------------------------------------------------------------
Loan Nos. 200 and 300 (JQH Hotel The indemnification provided by the
Portfolio and Xxxxxx Xxxxx 3) borrower with respect to a breach of
environmental representations,
warranties or covenants does not
cover losses due to diminution in
value or foreseeable and
unforeseeable consequential damages.
--------------------------------------------------------------------------------
Exception to Representation (21) Bankruptcy.
--------------------------------------------------------------------------------
All Mortgage Loans The Seller makes no representation
regarding the bankruptcy or
insolvency of any tenant at the
Mortgaged Property.
--------------------------------------------------------------------------------
Whole Loan; Interest Only; No Equity
Exceptions to Representation (22) Participation or Contingent Interest.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) The Mortgage Loan is not a whole
loan but is one of two pari passu
promissory notes, each evidencing an
interest in a mortgage loan with an
original aggregate principal balance
of $150,000,000.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) The Mortgage Loan is not a whole
loan but is one of two pari passu
promissory notes, each evidencing an
interest in a mortgage loan with an
original aggregate principal balance
of $150,000,000.
--------------------------------------------------------------------------------
Certain Mortgage Loans Certain of the Mortgage Loans provide
for interest-only payments without
principal amortization, as set forth
in Exhibit A hereto.
--------------------------------------------------------------------------------
Exceptions to Representation (23) Transfers and Subordinate Debt.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) The Loan Documents permit the equity
holders of the borrower to pledge
their interests in the borrower to
secure a mezzanine loan, subject to
the satisfaction of certain
criteria, including, but not limited
to that the combined debt service
coverage ratio is no less than
1.20x, the combined loan-to-value
ratio is no greater than 75% and a
confirmation from the rating
agencies that such mezzanine debt
will not result in a downgrade,
withdrawal or qualification of the
ratings assigned to the Certificates.
--------------------------------------------------------------------------------
Loan No. 300 (Xxxxxx Xxxxx 3) The Loan Documents permit the
following transfers: (i) transfers
of direct or indirect ownership
interests in the borrower to
"Qualified Transferees" meeting
certain financial criteria and
general creditworthiness standards
set forth in the Loan Agreement; and
(ii) transfers of direct or indirect
ownership interests in certain
specified affiliates of the
borrower. A "Qualified Transferee"
shall mean any one of the following
persons: (i) a pension fund, pension
trust or pension account that (a)
has total real estate assets of at
least $1 billion and (b) is managed
by a person who controls at least $1
billion of real estate equity
assets; (ii) a pension fund advisor
who (a) immediately prior to such
transfer, controls at least $1
billion of real estate equity assets
and (b) is acting on behalf of one
or more pension funds that, in the
aggregate, satisfy the requirements
of clause (i) of this definition;
(iii) an insurance company which is
subject to supervision by the
insurance commissioner, or a similar
official or agency, of a state or
territory of the United States
(including the District of Columbia)
(a) with a net worth, as of a date
no more than six (6) months prior to
the date of the transfer of at least
$500 million and (b) who,
immediately prior to such transfer,
controls real estate equity assets
of at least $1 billion; (iv) a
corporation organized under the
banking laws of the United States or
any state or territory of the United
States (including the District of
Columbia) (a) with a combined
capital and surplus of at least $500
million and (b) who, immediately
prior to such transfer, controls
real estate equity assets of at
least $1 billion; or (v) any person
(including, without limitation, any
pension fund, pension trust, pension
account, pension fund advisor,
insurance company or banking
corporation) (a) with a long-term
unsecured debt rating from the
Rating Agencies of at least
investment grade or (b) who (i) has
a net worth, as of a date no more
than six (6) months prior to the
date of such transfer, of at least
$75 million, (ii) immediately prior
to such transfer, controls real
estate equity assets of at least
$150 million and (iii) has not been
the subject of a bankruptcy or
insolvency proceeding during the
immediately preceding seven (7)
years.
In addition, the holders of indirect
ownership interests in the borrower
are permitted to pledge their
interests as security for additional
debt, provided that, among other
things, the following conditions are
satisfied: (i) no event of default
under the Mortgage Loan has occurred
and is continuing, (ii) the pledge is
to a "qualified pledgee" or is
subject to the lender's prior written
consent, which may be withheld in the
lender's sole and absolute
discretion, provided that the
lender's consent may not be
unreasonably withheld, if the
borrower has delivered (A)
confirmation from the rating agencies
that the pledge will not, in and of
itself, result in a downgrade,
withdrawal or qualification of the
ratings assigned to the Certificates
and (B) a substantive
non-consolidation opinion reasonable
acceptable to the lender and the
rating agencies, and (iii) in the
event the property manager of the
Mortgaged Property will change in
connection with the pledge, the
replacement property manager must
meet the conditions set forth in the
related Loan Documents. Pledges of
equity to or from affiliates of the
borrower are also permitted. A
"qualified pledgee" generally means
(i) one or more institutional
entities that (A) has total assets
(in name or under management) in
excess of $650,000,000, and (except
with respect to a pension advisory
firm or similar fiduciary)
capital/statutory surplus or
shareholder's equity of $250,000,000;
and (B) is regularly engaged in the
business of making or owning
commercial real estate loans or
commercial loans secured by a pledge
of interests in a mortgage borrower
or owning and operating commercial
mortgage properties; or (ii) an
entity for which the borrower has
obtained confirmation from the rating
agencies that the pledge to such
entity will not, in and of itself,
result in a downgrade, withdrawal or
qualification of the ratings assigned
to the Certificates.
--------------------------------------------------------------------------------
Loan No. 500 (252 Seventh Avenue) The borrower is permitted to
restructure its ownership to a
tenancy-in-common and, in connection
with such structure, is permitted to
transfer ownership of the Mortgaged
Property into no more than 3 single
member, special purpose bankruptcy
remote entities, subject to certain
conditions.
The Loan Documents permit the equity
owners of the borrower to obtain
mezzanine financing subject to
satisfaction of conditions contained
in the Loan Documents.
In addition, transfers of direct or
indirect beneficial ownership
interests in the borrower are
permitted without the prior consent
of the lender; provided that (x) one
or more members of the Elghanayan
Family (as defined below), in the
aggregate, and/or a Permitted
Transferee (as defined below) always
owns, directly or indirectly, more
than 50% of the borrower, (y)
following such transfer, one or more
members of the Elghanayan Family
and/or a Permitted Transferee shall
retain control of the management and
operation of the borrower and the
Mortgaged Property and (z) if after
giving effect to such transfer and
all prior transfers, no more than 49%
in the aggregate of direct or
indirect interests in the borrower
are owned by any person and its
affiliates that owned less than a 49%
direct or indirect interest in the
borrower as of the origination date,
the lender receives a non
consolidation opinion reasonably
acceptable to the lender and
acceptable to the rating agencies.
"Elghanayan Family" means H. Xxxxx
Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxx,
Xxxxxxxxx Xxxxxxxxxx, any of their
spouses, brothers and sisters
(whether by the whole or half blood),
sons, daughters, stepsons,
stepdaughters, grandchildren, great
grandchildren and lineal descendants
by birth or adoption spouses of each
of them and trusts for the exclusive
benefit of any such person and any
entity controlled by and at least 51%
owned directly or indirectly by any
one or more of the foregoing.
"Permitted Transferees" means any of
the following entities: (i) any
person who (a) owns or operates,
together with its affiliates, at
least 500,000 square feet of retail
space in New York City, (b) has a net
worth, determined as of a date no
more than 6 months prior to the date
of such transfer, of at least
$50,000,000, and (c) immediately
prior to such transfer, controls,
directly or indirectly, real estate
equity assets of at least
$150,000,000; (ii) any member of the
Elghanayan Family; or (iii) any
person or persons in which at least
51% of the ownership interests are
owned directly or indirectly by any
one or more of the entities listed in
clause (i) of this definition of
"Permitted Transferee", or any
combination of more than one such
entity owning such 51%, and which is
controlled directly or indirectly by
such entity or entities owning such
51%.
--------------------------------------------------------------------------------
Loan No. 800 (Garin Ranch) The Loan Documents permit the
following transfers: (i) the sale or
transfer of any direct or indirect
interest in Festival Retail Fund 1,
L.P. or an affiliated manager by
Festival Retail Fund GP, LLC, any
affiliate thereof or any other
person controlled and majority-owned
by Xxxx X. Xxxxxxxx and/or Xxxxxxxx
X. Xxxxxxxx ("Festival") to Xxxxxxx
Sachs Investments Ltd. and, if and
to the extent capitalized with cash
and/or equity in an aggregate amount
equal to or greater than
$100,000,000.00, Xxxxxxx Xxxxx Real
Estate Partners Fund, together with
any parallel funds controlled,
directly or indirectly, at all
times, by The Xxxxxxx Sachs Group
Inc. ("Goldman"). The sale or
transfer of any direct or indirect
interest in Festival Retail Fund 1,
L.P. by Goldman to Festival; the
sale or transfer of any direct or
indirect interest in the borrower or
in Festival Retail Fund 1, L.P. by
Goldman to one or more private
equity funds or opportunity funds
controlled by (a) Goldman or (b)
Festival; provided however that
after giving effect to any of the
foregoing, (x) the borrower will be
controlled by one or more of the
following: Goldman or Festival; (y)
the Mortgaged Property will at all
times be managed by a "qualified
manager" and (z) in the event any
transferee, as a result of a
permitted transfer, owns more than a
49% interest in the borrower, the
borrower will be required to deliver
a non-consolidation opinion
acceptable to the lender with
respect to such transferee; and (ii)
a sale to a Qualified Transferee.
A "Qualified Transferee" means any
one of the following persons (a) that
is not and is not an affiliate of a
Prohibited person (as defined in the
Loan Documents), and (b) with respect
to which the lender has received
acceptable credit and financial
reports/reviews of the proposed
"qualified transferee", and its
parent ownership: (i) a pension fund,
pension trust or pension account that
(a) has total real estate assets of
at least $300,000,000 (exclusive of
the Mortgaged Property) and (b) is
managed by a person who controls at
least $300,000,000 of real estate
equity assets (exclusive of the
Mortgaged Property); or (ii) a
pension fund advisor, private equity
fund or opportunity fund who (a)
immediately prior to such transfer,
controls at least $300,000,000 of
real estate equity assets (exclusive
of the Mortgaged Property) and (b) is
acting on behalf of one or more
pension funds that, in the aggregate,
satisfy the requirements of clause
(i) of this definition; or (iii) an
insurance company which is subject to
supervision by the insurance
commissioner, or a similar official
or agency, of a state or territory of
the United States (including the
District of Columbia) (a) with a net
worth, as of a date no more than 6
months prior to the date of the
transfer, of at least $225,000,000
and (b) who, immediately prior to
such transfer, controls real estate
equity assets of at least
$300,000,000 (exclusive of the
Mortgaged Property); or (iv) a
corporation or real estate investment
trust organized under the banking
laws of the United States or any
state or territory of the United
States (including the District of
Columbia) (a) with a combined capital
and surplus of at least $225,000,000
and (b) who, immediately prior to
such transfer, controls real estate
equity assets of at least
$300,000,000 (exclusive of the
Mortgaged Property); or (v) any
person (a) with a long-term unsecured
debt rating from the Rating Agencies
of at least investment grade or (b)
who (i) has a net worth, as of a date
no more than 6 months prior to the
date of such transfer, of at least
$225,000,000 and (ii) immediately
prior to such transfer, controls real
estate equity assets of at least
$300,000,000; or (vi) such other
person reasonably approved by the
lender. In determining whether to
approve such person, the lender shall
consider the reputation, prior
business practices, credit history,
financial strength and general
business standing of such person, as
well as such person's experience and
track record in owning and operating
facilities similar to the Mortgaged
Property and relationships and
experience with contractors, vendors,
tenants, lenders and other business
entities relative to similar
relationships and experience
maintained by other prudent real
estate owners and operators in good
standing in the communities in which
such person operates; provided,
however, that in determining whether
to approve such person as a Qualified
Transferee, such approval shall be
given or withheld based on what the
lender determines to be commercially
reasonable; provided, however, that
in no event shall a Qualified
Transferee include any person who,
(i) at the time of the proposed
transfer of the Mortgaged Property or
the ownership interests in the
borrower, as applicable, is an
adverse party in any litigation with
the lender, or (ii) who has, at any
time prior to such proposed
transfers, defaulted on a loan made
or held by the lender which was not
cured prior to the exercise of any
available remedies under such loan by
the lender.
In addition, the Loan Documents
permit the equity owners of the
borrower to obtain mezzanine
financing subject to satisfaction of
conditions contained in the Loan
Documents.
--------------------------------------------------------------------------------
Loan Nos. 600 and 1800 (Cranberry Commons The Loan Documents permit the equity
and 000-000 Xxxx 000xx Xxxxxx) owners of the borrower to obtain
mezzanine financing subject to
satisfaction of conditions contained
in the Loan Documents.
--------------------------------------------------------------------------------
Loan No. 700 (Nantucket Creek) A holder of direct or indirect
equity in the borrower has incurred
mezzanine debt secured by its equity
interest in the borrower in the
original principal amount of
$3,950,000. The mezzanine lender
executed an intercreditor agreement
in favor of the lender.
--------------------------------------------------------------------------------
Loan No. 600 (Cranberry Commons) The Loan Documents permit the
transfer of shares of stock in Kimco
Realty Corporation ("Kimco"),
provided that such shares of stock
are listed on the New York Stock
Exchange or other nationally
recognized stock exchange.
In addition, the Loan Documents
permit the transfer of up to 85% of
the direct or indirect interests in
the borrower provided that General
Electric Pension Trust and Kimco
continue to control the borrower and
the day-to-day operations and
management of the Mortgaged Property
and own, directly or indirectly, at
least a 15% interest in the borrower.
--------------------------------------------------------------------------------
Exception to Representation (26) Releases of Mortgaged Property.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) The Loan Documents permit the
borrower to obtain a release of an
individual Mortgaged Property
through partial defeasance at a
release price equal to (a) 100% of
the allocated loan amount with
respect to an amount below
$50,000,000; (b) 115% of the
allocated loan amount with respect
to a partial defeasance in an amount
equal to $50,000,000 (inclusive of
the amounts set forth in clause (a)
above) but less than $100,000,000;
and (c) 125% of the allocated loan
amount with respect to a partial
defeasance in an amount equal to
$100,000,000 (inclusive of the
amounts set forth in clauses (a) and
(b) above). Conditions to the
release of a Mortgaged Property
include: (i) after giving effect to
such release, the debt service
coverage ratio for the Mortgaged
Properties then remaining subject to
the lien of the Mortgage shall be at
least equal to the greater of (x)
the debt service coverage ratio as
of the date of origination, and (ii)
the lesser of (A) the debt service
coverage ratio for all of the then
remaining Mortgaged Properties
(including the individual Mortgaged
Property to be released) for the
twelve (12) full calendar months
immediately preceding the release of
the individual Mortgaged Property
and (B) 2.0x; (ii) after giving
effect to such release, the
loan-to-value ratio for the
Mortgaged Properties then remaining
subject to the lien of the Mortgage
shall not exceed the lesser of (x)
the loan-to-value ratio as of the
date of origination, and (y) the
greater of (A) the loan-to-value
ratio for all of the then remaining
Mortgaged Properties (including the
individual Mortgaged Property to be
released) immediately preceding the
release of the individual Mortgaged
Property and (B) 60%; and (iii)
confirmation from the rating
agencies that such a release will
not result in a downgrade,
withdrawal or qualification of the
ratings assigned to the Certificates.
--------------------------------------------------------------------------------
Loan No. 300 (Xxxxxx Xxxxx 3) The Loan Documents permit the
borrower to obtain the release of
one or more specified parcels at the
Mortgaged Property without payment
of a release price, provided that
except with respect to parcels that
are acquired after the origination
date, and subject to the
satisfaction of certain conditions,
including, but not limited to, that
each such parcel is generally
required to be vacant, non-income
producing and unimproved or improved
only by landscaping, utility
facilities that are readily
relocatable or surface parking areas.
--------------------------------------------------------------------------------
Exception to Representation (30) Single-Purpose Entity.
--------------------------------------------------------------------------------
Loan No. 500 (252 Seventh Avenue ) The related borrower was not
required to deliver a
non-consolidation opinion.
--------------------------------------------------------------------------------
Loan No. 600 (Cranberry Commons) The related borrower was not
required to deliver a
non-consolidation opinion and does
not have an independent director.
--------------------------------------------------------------------------------
Loan Nos. 800 and 900 (Garin Ranch and The related borrower does not have
0000-0000 Xxxxx Xxxxxx) an independent director.
--------------------------------------------------------------------------------
Exception to Representation (41) Non-Recourse Exceptions.
--------------------------------------------------------------------------------
All Mortgage Loans except as specified In some instances, the Loan
below Documents contain a carveout for
"fraud or intentional
misrepresentation" rather than "fraud
or material misrepresentation." In
addition, the Loan Documents provide
for recourse for the misapplication
or conversion by the borrower of any
rents following an event of default
or any rents collected for more than
one month in advance to the extent
that such rents or any other payments
in respect of the leases and other
income of the related Mortgaged
Property or any other collateral are
not applied to the costs of
maintenance and operation of the
related Mortgaged Property and to the
payment of taxes, lien, claims,
insurance premiums, debt service and
other amounts due under the loan
documents, instead of "misapplication
or misappropriation of rents,
insurance proceeds or condemnation
awards" with respect to all Mortgage
Loans.
--------------------------------------------------------------------------------
Loan No. 100 (HPI - GSA Portfolio) The recourse carveout guarantor is
Abbestate Holding, Inc., rather than
a natural person. Abbestate Holding,
Inc. has a reported a total net
worth of $36,500,000 and liquid
assets in the amount of $13,700,000.
An environmental indemnity and an
environmental insurance policy have
been provided. The carveout
guarantor's obligations under the
environmental indemnity enter into
effect in the event that the
environmental insurance policy
lapses.
--------------------------------------------------------------------------------
Loan No. 300 (Xxxxxx Xxxxx 3) There is no other individual or
entity other than the borrower that
is liable for the non-recourse
carve-outs.
In addition, non-recourse carveouts
to the borrower do not include damage
or destruction to the Mortgaged
Property caused by the acts or
omissions of the borrower, its
agents, employees or contractors.
--------------------------------------------------------------------------------
Loan No. 500 (252 Seventh Avenue) The recourse carveout guarantor is
Rockrose Properties L.L.C., rather
than a natural person.
An environmental indemnity and an
environmental insurance policy have
been provided. The carveout
guarantor's obligations under the
environmental indemnity enter into
effect in the event that the
environmental insurance policy
lapses.
--------------------------------------------------------------------------------
Loan No. 800 (Garin Ranch) The recourse carveout guarantor is
Festival Retail Fund 1, L.P., rather
than a natural person.
--------------------------------------------------------------------------------
Loan No. 900 (1001-1007 Third Avenue) The recourse carveout guarantor is
Reading International Inc., rather
than a natural person.
--------------------------------------------------------------------------------
Loan Nos. 600 and 1000 (Cranberry Commons There is no other individual or
and Argosy Apartments) entity other than the borrower that
is liable for the non-recourse
carveouts.
--------------------------------------------------------------------------------
Loan No. 1800 (500-506 West 172nd Street) The recourse carveout guarantor is
Cronus Real Estate Fund, L.P.,
rather than a natural person.
--------------------------------------------------------------------------------
Exception to Representation (43) Financial Statements.
--------------------------------------------------------------------------------
Loan No. 400 (ChampionsGate Hotel) The borrower is only required to
deliver audited annual statements.
--------------------------------------------------------------------------------
Loan No. 500 (252 Seventh Avenue) The borrower is permitted to deliver
financial statements prepared by
accountants employed by Kimco Realty
Corporation.
--------------------------------------------------------------------------------
Exception to Representation (44) Fee/Leasehold Properties.
--------------------------------------------------------------------------------
Loan No. 200 (JQH Hotel Portfolio) The Embassy Suites - St. Xxxxxxx
property is subject to a ground
lease which expires on April 30,
2058, more than 20 years after the
Mortgage Loan's maturity date of May
6, 2017. As the Mortgage Loan is
interest only for its entire loan
term, there is no amortization term.
EXHIBIT A
--------------------------------------------------------------------------------
Each of the following provides for interest-only payments without principal
amortization for the first 24 months of the related term:
--------------------------------------------------------------------------------
Loan No. Mortgage Loan
--------------------------------------------------------------------------------
400 ChampionsGate Hotel
--------------------------------------------------------------------------------
1500 Bella Vista Apartments
--------------------------------------------------------------------------------
The following provides for interest-only payments without principal amortization
for the first 36 months of its term:
--------------------------------------------------------------------------------
Loan No. Mortgage Loan
--------------------------------------------------------------------------------
1300 Huntsville Office & Retail Portfolio
--------------------------------------------------------------------------------
Each of the following provides for interest-only payments without principal
amortization for the first 60 months of the related term:
--------------------------------------------------------------------------------
Loan No. Mortgage Loan
--------------------------------------------------------------------------------
1100 000 Xxxxxxxxxxx Xxxxxx
--------------------------------------------------------------------------------
1200 Aspen Gardens
--------------------------------------------------------------------------------
1400 Xxxxxxx
--------------------------------------------------------------------------------
1600 00 Xxxxx Xxxxx
--------------------------------------------------------------------------------
1700 Convention Center Garage
--------------------------------------------------------------------------------
Each of the following mortgage loans provides for interest-only payments for the
entire 60-month term:
--------------------------------------------------------------------------------
Loan No. Mortgage Loan
--------------------------------------------------------------------------------
300 Xxxxxx Xxxxx 3
--------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx
--------------------------------------------------------------------------------
800 Garin Ranch
--------------------------------------------------------------------------------
900 0000-0000 Xxxxx Xxxxxx
--------------------------------------------------------------------------------
1000 Argosy Apartments
--------------------------------------------------------------------------------
1800 000-000 Xxxx 000xx Xxxxxx
--------------------------------------------------------------------------------
0000 Xxxxxx Xxxxxx
--------------------------------------------------------------------------------
Each of the following provides for interest-only payments without principal
amortization for the entire 120-month term:
--------------------------------------------------------------------------------
Loan No. Mortgage Loan
--------------------------------------------------------------------------------
100 HPI - GSA Portfolio
--------------------------------------------------------------------------------
200 JQH Hotel Portfolio
--------------------------------------------------------------------------------
500 000 0xx Xxxxxx
--------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxxxx
--------------------------------------------------------------------------------
1900 5661-5669 Broadway
--------------------------------------------------------------------------------
2000 0000 Xxxx Xxxxxxx Xxxxx
--------------------------------------------------------------------------------
2200 00 Xxxx Xxxxxx
--------------------------------------------------------------------------------
