EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of December 1, 2007, between Bank of America, National
Association, as seller (the "Seller" or "Bank of America") 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 will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of the
Mortgage Loans 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 Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
(together, 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
December 1, 2007 (the "Pooling and Servicing Agreement"), among BACM, as
depositor, Bank of America, National Association, as master servicer (the
"Master Servicer"), Centerline Servicing Inc., as special servicer (the "Special
Servicer"), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), and LaSalle Bank
National Association, as certificate administrator (in such capacity, the
"Certificate Administrator") 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") and Greenwich Capital Markets, Inc. ("RBS Greenwich
Capital" and, together with BAS, the "Underwriters") pursuant to an underwriting
agreement, dated as of December 20, 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 agency agreement, dated as of December
20, 2007 (the "Private Placement Agency Agreement"), among BACM and BAS. The
Offered Certificates are more fully described in the prospectus dated December
20, 2007 (the "Base Prospectus"), and the supplement to the Base Prospectus
dated December 20, 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 December 20, 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 December 20, 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 December 28, 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 Bank of America'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.
(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 a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(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 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 of Mortgage Loans 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 of
Mortgage Loans 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 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 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 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 good standing regarding the Seller from the
Comptroller of the Currency, 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 Bank of America, National Association, 000 Xxxxx Xxxxx
Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
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 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.
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
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
-------- ----------- --------------- --------------------------------------
1 0000000 Bank of America Xxxxxxx Center
2 0000000 Bank of America Sawgrass Xxxxx
3 0000000 Bank of America Arundel Xxxxx
4 0000000 Bank of America Summit Office Campus
5 0000000 Bank of America Xxxxx Xxxxxx Building
6 0000000 Bank of America 000 Xxxxx Xxxxxx
7 0000000 Bank of America Green Oak Village Place
8 0000000 Bank of America Visconti
9 0000000 Bank of America Xxxxxxx Oaks Marriott
10 0000000 Bank of America 0000 Xxxxxxxxx Xxxxxx
11 0000000 Bank of America Xxxxxx Xxxxx Shopping Center
12 0000000 Bank of America West Hartford Portfolio
13 0000000 Bank of America 000 Xxxxxxxx Xxxxx
14 0000000 Bank of America Midway Business Center
15 0000000 Bank of America Xxxxxxx Commons
16 0000000 Bank of America Eastern Silverado Center
17 0000000 Bank of America Xxxx Xxxxxxxx Xxxxxxxx
00 Xxxxxx Xxxx xx Xxxxxxx CVS Portfolio
18.1 0000000 Bank of America CVS Portfolio Louisiana
18.2 0000000 Bank of America CVS Portfolio Texas
18.3 0000000 Bank of America CVS - Gulfport
19 0000000 Bank of America Northampton Village I
20 0000000 Bank of America 0000 00xx Xxxxxx
21 0000000 Bank of America The Pointe at Bridgeport
22 0000000 Bank of America 000 0xx Xxxxxx
23 59739 Bank of America Xxxxxx Expressway
24 0000000 Bank of America Simply Self Storage Portfolio II
25 0000000 Bank of America Cypress I
26 0000000 Bank of America The Sherwood Corporate Center
27 0000000 Bank of America 2404 Wilshire Lofts
28 0000000 Bank of America Xxxxx Xxxxx Apartments
29 0000000 Bank of America Holiday Inn San Antonio
30 0000000 Bank of America South Slope
31 0000000 Bank of America Beacon Hotel
32 0000000 Bank of America North Xxxxxx Center
33 0000000 Bank of America Cincinnati MOB Portfolio
34 0000000 Bank of America 0 Xxxxxxxx Xxxx
35 0000000 Bank of America Bella Sonoma Apartments II
36 0000000 Bank of America Northbelt Corporate Center
37 0000000 Bank of America Richmar Plaza
38 0000000 Bank of America Xxx Xxxx Retail Center
39 0000000 Bank of America Stock Building Supply
40 0000000 Bank of America Issaquah Highlands Town Center
41 0000000 Bank of America Xxxxxxxxx Crossings
42 Rollup Bank of America Walgreens CO Portfolio
42.1 0000000 Bank of America Walgreens - Ft. Xxxxxxx
42.2 0000000 Bank of America Walgreens - Arvada
42.3 0000000 Bank of America Walgreens - Niles
42.4 0000000 Bank of America Walgreens - Xxxxx
43 0000000 Bank of America 0000 Xxxxxxxx Xxxxx
44 0000000 Bank of America Midtown Retail
45 0000000 Bank of America DTI- The Heritage Apartments
46 24130 Bank of America Budget Storage Portfolio I
47 0000000 Bank of America Gander Mountain Waukesha
48 0000000 Bank of America Friar's Village Shopping Center
49 0000000 Bank of America Xxxxxxx Plaza
50 0000000 Bank of America Salisbury Green Apartments
51 0000000 Bank of America Harwin-Point West
52 0000000 Bank of America Del Paso Retail
53 0000000 Bank of America Colonnade at Kings Grant
54 25129 Bank of America Budget Storage Portfolio II
55 0000000 Bank of America Superior Self Storage
56 21902 Bank of America Xxxxxx Xxxxxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Xxxxxxx Inn - XXX
00 00000 Xxxx xx Xxxxxxx Goshen Village Shoppes
59 19289 Bank of America Lockaway Storage - Sunnyvale
60 0000000 Bank of America Bridgeport Shopping Center
61 23796 Bank of America Stone Canyon
62 0000000 Bank of America Del Sol Inn
63 0000000 Bank of America Rite Aid (Dallas) - Shavertown, PA
64 24550 Bank of America Holiday Inn Express - Humble
65 0000000 Bank of America Olde Towne Marketplace
66 18885 Bank of America Pavilion Medical Center-Carolina Beach
67 23368 Bank of America Big Bend Office
68 0000000 Bank of America Rite Aid - East Stroudsburg, PA
69 0000000 Bank of America Cliffbrook Condominiums
70 21261 Bank of America Broadway Plaza Retail Center
71 0000000 Bank of America Frontier Dental
72 0000000 Bank of America 0000 Xxxx Xxxxxx
73 0000000 Bank of America Walgreens - Youngstown
74 0000000 Bank of America Summit Apartments - San Marcos, TX
75 0000000 Bank of America River Place Office
76 0000000 Bank of America Greenbriar Student Housing
77 24152 Bank of America Best Western-Greenville
78 0000000 Bank of America 000 Xxxxxxxxx Xxxxxx
79 0000000 Bank of America Indianapolis Enterprise Center
80 21632 Bank of America University Gateway North
81 0000000 Bank of America 1010 Executive Center
82 0000000 Bank of America 0000 Xxxxxxxx
83 00000 Xxxx xx Xxxxxxx Xxxxxxxxxxx Medical Mall
84 0000000 Bank of America Xxxxxxxxx Xxxx Xxxxxxxx
00 00000 Xxxx of America McMinnville Medical Building
86 0000000 Bank of America Sunbelt Rentals
87 0000000 Bank of America CVS - Federal Hill
88 23549 Bank of America PostJones Office
89 0000000 Bank of America Silver Creek Apartments
90 22216 Bank of America Vista Del Lago
91 0000000 Bank of America A-1 Personal Storage
92 22594 Bank of America 1200 Ashland Office
93 0000000 Bank of America Airpark - Xxxxx 00xx Xxxxxx
00 00000 Bank of America Horsepen Retail Center
95 23213 Bank of America Kanis Business Park
Total
Sequence Street Address City
-------- ------------------------------------------------------------------------- ----------------------
1 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxx
2 00000 Xxxx Xxxxxxx Xxxxxxxxx Sunrise
3 0000 Xxxxxxx Xxxxx Xxxxxx Hanover
4 000 Xxxxxxxxx Xxxx Xxxxxxx and 000 Xxxxxxxxx Xxxxxxx Xxxx Xxxx Xxxxxx
5 0000 Xx Xxxxx Xxxxxxx Xxxxx Xxx Xxxxx
6 000 Xxxxx Xxxxxx Xxx Xxxx
7 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx
8 0000 Xxxx 0xx Xxxxxx Xxx Xxxxxxx
9 15433 Ventura Boulevard Xxxxxxx Oaks
10 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
11 0000 Xxxxxxxxx Xxxxxx Xxxxxx Tualatin
12 Various Hartford
13 000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxxxx
14 0000-0000 Xxxxx Xxxxxx; 0000-0000 Xxxxx Xxxxxx; 0000-0000 Xxxxx Xxxxxxx Xxxxxxx
15 1505 Xxxxxxxx Drive Valdosta
16 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxx
17 00000 Xxxxx Xxxx Xxxxxxxx Xxxx Xxxxxx
18 Various Various
18.1 Various Various
18.2 Various Various
18.3 0000 00xx Xxxxxx Xxxxxxxx
19 000 Xxxxxxx Xxxxx Xxxxxxx
20 0000 00xx Xxxxxx Xxx Xxxx
21 0000 Xxxxxxxxx Xxxxx Xxxx Xxxx Tigard
22 000 0xx Xxxxxx Xxx Xxxx
23 0000 Xxxxx Xxxxx Xxxxxx San Jacinto
24 Various Various
25 00000 Xxxxxx Xxxxxx and 0000 Xxxxxxxxx Xxxxxx Cypress
26 15 Xxxxxx Road; 90, 91, 100 and 000 Xxxxx Xxxxx Xxxxxxxx
27 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
28 000 Xxxxxx Xxxx Xxxxxxx
29 000 Xxxx Xxxxxxx Xxxxxxxxx San Antonio
30 0000 Xxxxxxxx Xxxxx Xxxxxxxx
31 000 Xxxxx Xxxxx Xxxxx Beach
32 10623 Southeast Xxxx Road Renton
33 Various Various
34 0 Xxxxxxxx Xxxx Xxxxxxxxx
35 0000 00xx Xxxxxx Xxxx Xxxx
36 0000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx
37 9555, 9595 and 0000 Xxxxxxx Xxxxxx Xxx Xxxxx
38 17937-17947 Interstate Highway 45 Shenandoah
39 3300 Business Center Drive Chesapeake
40 0000 00xx Xxxxxx Xxxxxxxxx Issaquah
41 29025 Overland Drive Temecula
42 Various Various
42.1 0000 Xxxx Xxxxx Xxxx Ft. Xxxxxxx
42.2 0000 Xxxxxxxxx Xxxxxxxxx Arvada
42.3 0000 Xxxxxxxxxx Xxxx Niles
42.4 0000 00xx Xxxxxx Xxxxx
43 0000 Xxxxxxxx Xxxxx Xxx Xxxxx
44 1407 Xxxx 0xx Xxxxxx, 000 Xxxxx Xxxxxxxxxxxx Boulevard, 000 Xxxxxx Xxxxxx Xxxxxxxxx
45 0000 0xx Xxxxxx Xxxxxxx
46 Various Various
47 2440 East Xxxxxxxx Boulevard Waukesha
48 10406, 10410, 10450 and 00000 Xxxxxx Xxxx Xxx Xxxxx
49 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx
50 000 Xxxxxx Xxxx Xxxxxxx
00 00000, 10165, 00000 Xxxxxx Xxxxx Xxxxxxx
52 1850 Del Paso Road Sacramento
00 0000-0000 Pit Stop Court Concord
54 Various Various
55 0000 Xxxxxxxxx Xxxx Xxxxxxx Xxxx
56 00000 000xx Xxxxxx Xxxxxxxxx Xxxxxx
57 0000 Xxxxxx Xxxxxxxxx Irving
58 0000 Xxxxxxx Xxxx Elkhart
59 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
60 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxx
61 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx
62 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
63 000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxx
64 7014 Xxxx Xxxxxxx Parkway Humble
65 0000-0000 Xxxxxx Xxxxxxxxx Portsmouth
66 0000 Xxxxx Xxxx Xxxx Xxxxxxxxx Xxxxxxxx Xxxxx
67 910 & 000 Xxxxxxxx Xxxxxx Xxxxxx City
68 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxx
69 7965 Cliffbrook Drive Dallas
70 1205-1233 South Xxxxxxxx Xxxxxx Xxxxx
00 0000-0000 Xxxxxxxxx Boulevard Torrance
72 0000 Xxxx Xxxxxx Xxxx Xxxxxxx
73 2249 Youngstown Xxxxxx Road Niles
74 0000 Xxxxxx Xxxx Xxx Xxxxxx
75 0000 Xxxxxxx Xxxxxx Xxxxxx Hoover
76 000 Xxxx Xxxxx Xxxxxx, 000 Xxxxx Xxxxxx and 000 Xxxxxx Xxxxxx Xxxxxxx Xxxxx
77 0000 Xxxxxx Xxxx Xxxxxxxxxx
78 000 Xxxxxxxxx Xxxxxx Xxxxxxxx
79 00 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxx
00 0000-0000 North High Street Columbus
81 0000 XX Xxxxx 000 Xxxx Xxxxxxxxx Station
82 1093 Broadway Saugus
83 000 Xxxxxx Xxxx Xxxxxxxxxxx
84 000 Xxxxxxxx Xxxxxxx
85 235, 345 & 000 Xxxxxxxxx Xxxxxx Xxxx XxXxxxxxxxx
00 00000 & 00000 Xxxxxxx Xxxx Xxxxxxxxxxxx
87 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
88 0000 Xxxxx Xxxxx Xxxxxxxxx Xxx Xxxxx
89 0000 Xxxxx Xxxxx Xxxxxx Lufkin
90 000 Xxxx 0xx Xxxxxx Irving
91 10120 Xxxxxx Road Raleigh
92 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx
93 00000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx
94 0000 Xxxxxxxx Xxxx and 0000 Xxxxxx Xxxx Xxxxxxxx
00 0000 & 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx Xxxx
Sequence State Zip Code Mortgage Rate Amortization Basis Original Balance Cut-off Date Balance
-------- ------- -------- ------------- ------------------ ---------------- --------------------
0 XX 00000 6.245% Actual/360 $144,500,000 $144,500,000
2 FL 33323 5.820% Actual/360 $132,647,059 $132,647,059
3 MD 21076 6.140% Actual/360 $128,333,333 $128,333,333
4 MO 64086 6.250% Actual/360 $120,000,000 $120,000,000
5 XX 00000 5.605% Actual/360 $99,600,000 $99,600,000
6 XX 00000 5.903% Actual/360 $72,000,000 $72,000,000
7 XX 00000 5.435% Actual/360 $67,525,000 $67,525,000
8 XX 00000 5.574% Actual/360 $64,500,000 $64,500,000
9 XX 00000 6.403% Actual/360 $55,000,000 $55,000,000
00 XX 00000 6.325% Actual/360 $53,000,000 $53,000,000
00 XX 00000 5.555% Actual/360 $41,000,000 $41,000,000
12 CT Various 6.019% Actual/360 $37,179,141 $37,179,141
00 XX 00000 5.854% Actual/360 $31,450,000 $31,450,000
00 XX 00000 6.802% Actual/360 $30,535,188 $30,535,188
00 XX 00000 6.334% Actual/360 $29,000,000 $29,000,000
16 XX 00000 6.610% Actual/360 $28,500,000 $28,500,000
00 XX 00000 6.093% Actual/360 $28,250,000 $28,250,000
18 Various Various $26,500,000 $26,500,000
18.1 LA Various 5.530% Actual/360 $12,717,500 $12,717,500
18.2 TX Various 5.530% Actual/360 $12,060,000 $12,060,000
18.3 XX 00000 5.530% Actual/360 $1,722,500 $1,722,500
00 XX 00000 5.592% Actual/360 $25,850,000 $25,850,000
00 XX 00000 5.795% Actual/360 $25,500,000 $25,500,000
00 XX 00000 5.694% Actual/360 $25,000,000 $25,000,000
00 XX 00000 6.203% Actual/360 $25,000,000 $24,976,063
00 XX 00000 5.869% Actual/360 $23,800,000 $23,800,000
24 Various Various 5.741% Actual/360 $21,376,000 $21,376,000
00 XX 00000 6.414% Actual/360 $21,000,000 $21,000,000
00 XX 00000 6.398% Actual/360 $18,000,000 $18,000,000
00 XX 00000 6.284% Actual/360 $17,250,000 $17,250,000
28 XX 00000 5.450% Actual/360 $17,000,000 $16,964,934
00 XX 00000 6.204% Actual/360 $16,248,693 $16,248,693
00 XX 00000 5.592% Actual/360 $15,400,000 $15,400,000
00 XX 00000 6.541% Actual/360 $14,775,000 $14,737,727
32 XX 00000 6.500% Actual/360 $14,450,000 $14,450,000
33 OH Various 5.989% Actual/360 $14,290,000 $14,290,000
00 XX 00000 6.651% Actual/360 $14,000,000 $14,000,000
35 XX 00000 6.205% Actual/360 $13,700,000 $13,700,000
00 XX 00000 6.465% Actual/360 $13,600,000 $13,600,000
37 XX 00000 6.724% Actual/360 $13,500,000 $13,500,000
00 XX 00000 6.750% Actual/360 $12,500,000 $12,500,000
00 XX 00000 5.531% Actual/360 $12,450,000 $12,450,000
40 XX 00000 5.836% Actual/360 $12,000,000 $12,000,000
00 XX 00000 5.974% Actual/360 $11,850,000 $11,850,000
42 Various Various $11,600,000 $11,600,000
42.1 CO 80526 6.074% Actual/360 $3,800,000 $3,800,000
42.2 CO 80003 6.074% Actual/360 $3,300,000 $3,300,000
42.3 XX 00000 6.074% Actual/360 $2,300,000 $2,300,000
42.4 CO 80620 6.074% Actual/360 $2,200,000 $2,200,000
00 XX 00000 6.636% Actual/360 $10,900,000 $10,900,000
00 XX 00000 6.246% Actual/360 $10,000,000 $10,000,000
00 XX 00000 5.610% Actual/360 $10,000,000 $9,895,171
46 PA Various 6.918% Actual/360 $8,810,000 $8,810,000
00 XX 00000 6.528% 30/360 $8,800,000 $8,800,000
00 XX 00000 6.403% Actual/360 $8,700,000 $8,700,000
00 XX 00000 6.544% Actual/360 $8,472,000 $8,461,905
50 XX 00000 5.450% Actual/360 $8,000,000 $7,983,498
00 XX 00000 6.301% Actual/360 $7,500,000 $7,500,000
00 XX 00000 6.456% Actual/360 $7,400,000 $7,400,000
00 XX 00000 5.551% Actual/360 $7,342,500 $7,342,500
00 XX 00000 6.918% Actual/360 $7,050,000 $7,050,000
00 XX 00000 6.912% Actual/360 $7,000,000 $7,000,000
56 XX 00000 5.832% Actual/360 $6,930,000 $6,930,000
00 XX 00000 6.548% Actual/360 $6,750,000 $6,739,111
58 IN 46517 5.808% Actual/360 $6,300,000 $6,300,000
00 XX 00000 6.655% Actual/360 $6,240,000 $6,234,527
00 XX 00000 6.386% Actual/360 $6,000,000 $5,994,455
61 XX 00000 6.150% Actual/360 $5,000,000 $5,000,000
00 XX 00000 6.432% Actual/360 $5,000,000 $4,991,713
00 XX 00000 6.185% Actual/360 $4,800,000 $4,791,582
00 XX 00000 6.920% Actual/360 $4,762,000 $4,750,955
00 XX 00000 6.519% Actual/360 $4,525,000 $4,525,000
00 XX 00000 6.078% Actual/360 $4,500,000 $4,471,720
00 XX 00000 5.798% Actual/360 $4,530,000 $4,471,226
00 XX 00000 5.865% Actual/360 $4,400,000 $4,400,000
00 XX 00000 5.992% Actual/360 $4,344,000 $4,344,000
00 XX 00000 6.701% Actual/360 $4,000,000 $4,000,000
00 XX 00000 6.925% Actual/360 $3,823,000 $3,823,000
00 XX 00000 6.466% Actual/360 $3,920,000 $3,920,000
73 OH 44446 6.376% Actual/360 $3,880,800 $3,867,698
00 XX 00000 5.828% Actual/360 $3,840,000 $3,840,000
00 XX 00000 6.692% Actual/360 $3,750,000 $3,750,000
76 OH 43402 6.258% Actual/360 $3,750,000 $3,746,447
00 XX 00000 6.822% Actual/360 $3,400,000 $3,368,231
78 XX 00000 5.613% Actual/360 $3,230,000 $3,230,000
79 IN 46201 6.805% Actual/360 $3,194,000 $3,191,280
80 OH 43201 6.480% Actual/360 $3,100,000 $3,100,000
00 XX 00000 6.546% Actual/360 $3,000,000 $3,000,000
00 XX 00000 6.375% Actual/360 $3,000,000 $2,994,962
83 OH 43113 6.570% Actual/360 $2,900,000 $2,900,000
00 XX 00000 6.722% Actual/360 $2,798,000 $2,798,000
00 XX 00000 6.696% Actual/360 $2,800,000 $2,793,173
00 XX 00000 6.341% Actual/360 $2,730,000 $2,730,000
00 XX 00000 6.349% Actual/360 $2,700,000 $2,700,000
88 XX 00000 6.770% Actual/360 $2,700,000 $2,695,866
00 XX 00000 6.238% Actual/360 $2,582,983 $2,573,984
00 XX 00000 5.814% Actual/360 $2,260,000 $2,237,267
00 XX 00000 6.627% Actual/360 $1,949,000 $1,944,175
00 XX 00000 6.100% Actual/360 $1,920,000 $1,909,593
00 XX 00000 6.056% Actual/360 $1,800,000 $1,794,959
00 XX 00000 6.990% Actual/360 $1,235,000 $1,235,000
00 XX 00000 6.402% Actual/360 $1,106,000 $1,101,448
$1,858,595,584
Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
-------- ------------------------------------------ -------------------- -------- ---------------
1 115 7/1/2017 First 762,447
2 79 7/1/2014 First 652,273
3 80 8/1/2014 First 781,012
4 117 9/1/2017 First 738,861
5 118 10/1/2017 First 471,692
6 174 6/1/2022 First 427,197
7 109 1/1/2017 First 377,832
8 50 2/1/2012 First 303,764
9 120 12/1/2017 First 344,136
10 124 4/1/2018 First 283,234
11 120 12/1/2017 First 192,432
12 51 3/1/2012 First 223,371
13 54 6/1/2012 First 155,554
14 60 12/1/2012 First 199,107
15 116 8/1/2017 First 180,145
16 118 10/1/2017 First 182,206
17 118 10/1/2017 First 171,066
18
18.1 114 6/1/2017 First 72,448
18.2 114 6/1/2017 First 68,703
18.3 114 6/1/2017 First 9,813
19 113 5/1/2017 First 122,134
20 118 10/1/2017 First 124,854
21 117 9/1/2017 First 120,273
22 119 11/1/2017 First 153,166
23 118 10/1/2017 First 140,687
24 113 5/1/2017 First 103,694
25 119 11/1/2017 First 131,549
26 119 11/1/2017 First 97,303
27 120 12/1/2017 First 106,593
28 118 10/1/2017 First 95,992
29 115 7/1/2017 First 99,560
30 113 5/1/2017 First 72,761
31 117 9/1/2017 First 93,787
32 118 10/1/2017 First 91,334
33 80 8/1/2014 First 72,310
34 118 10/1/2017 First 78,673
35 119 11/1/2017 First 83,953
36 60 12/1/2012 First 85,648
37 118 10/1/2017 First 87,328
38 121 1/1/2018 First 95,046
39 113 5/1/2017 First 58,181
40 115 7/1/2017 First 70,686
41 117 9/1/2017 First 70,849
42
42.1 117 9/1/2017 First 19,501
42.2 117 9/1/2017 First 16,935
42.3 117 9/1/2017 First 11,804
42.4 117 9/1/2017 First 11,290
43 121 1/1/2018 First 69,873
44 116 8/1/2017 First 61,546
45 110 2/1/2017 First 57,471
46 117 9/1/2017 First 58,129
47 82 10/1/2014 First 47,872
48 117 9/1/2017 First 54,436
49 119 11/1/2017 First 56,296
50 118 10/1/2017 First 45,172
51 116 8/1/2017 First 46,428
52 120 12/1/2017 First 46,559
53 114 6/1/2017 First 41,925
54 117 9/1/2017 First 46,516
55 117 9/1/2017 First 46,156
56 114 6/1/2017 First 40,803
57 118 10/1/2017 First 42,878
58 115 7/1/2017 First 30,916
59 119 11/1/2017 First 40,079
60 119 11/1/2017 First 37,475
61 114 6/1/2017 First 30,461
62 118 10/1/2017 First 31,380
63 118 10/1/2017 First 29,352
64 117 9/1/2017 First 31,426
65 117 9/1/2017 First 28,658
66 113 5/1/2017 First 27,206
67 114 6/1/2017 First 31,929
68 120 12/1/2017 First 26,000
69 117 9/1/2017 First 26,022
70 117 9/1/2017 First 25,814
71 121 1/1/2018 First 25,242
72 119 11/1/2017 First 24,688
73 116 8/1/2017 First 24,214
74 111 3/1/2017 First 22,600
75 119 11/1/2017 First 24,177
76 119 11/1/2017 First 23,109
77 115 7/1/2017 First 25,998
78 114 6/1/2017 First 18,569
79 119 11/1/2017 First 20,833
80 118 10/1/2017 First 20,893
81 119 11/1/2017 First 19,053
82 118 10/1/2017 First 18,716
83 120 12/1/2017 First 18,464
84 81 9/1/2014 First 18,096
85 117 9/1/2017 First 18,060
86 120 12/1/2017 First 16,970
87 112 4/1/2017 First 16,799
88 118 10/1/2017 First 17,548
89 116 8/1/2017 First 15,884
90 110 2/1/2017 First 13,281
91 117 9/1/2017 First 12,482
92 54 6/1/2012 First 11,635
93 117 9/1/2017 First 10,857
94 120 12/1/2017 First 8,721
95 115 7/1/2017 First 6,920
Sequence Administrative Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
-------- ----------------------- -------------------------- ------------------------- ------------------
1 0.081% 0.060% 0.020% Leasehold
2 0.031% 0.010% 0.020% Fee
3 0.071% 0.050% 0.020% Fee
4 0.081% 0.060% 0.020% Leasehold
5 0.081% 0.060% 0.020% Fee
6 0.081% 0.060% 0.020% Fee
7 0.081% 0.060% 0.020% Fee
8 0.051% 0.030% 0.020% Fee
9 0.081% 0.060% 0.020% Fee
10 0.081% 0.060% 0.020% Leasehold
11 0.051% 0.030% 0.020% Leasehold
12 0.051% 0.030% 0.020% Fee
13 0.051% 0.030% 0.020% Fee
14 0.051% 0.030% 0.020% Fee
15 0.051% 0.030% 0.020% Fee
16 0.051% 0.030% 0.020% Fee
17 0.051% 0.030% 0.020% Fee
18 Fee
18.1 0.041% 0.020% 0.020% Fee
18.2 0.041% 0.020% 0.020% Fee
18.3 0.041% 0.020% 0.020% Fee
19 0.051% 0.030% 0.020% Fee
20 0.051% 0.030% 0.020% Fee
21 0.071% 0.050% 0.020% Fee
22 0.051% 0.030% 0.020% Fee
23 0.051% 0.030% 0.020% Fee
24 0.051% 0.030% 0.020% Fee
25 0.051% 0.030% 0.020% Fee
26 0.051% 0.030% 0.020% Fee
27 0.051% 0.030% 0.020% Fee
28 0.051% 0.030% 0.020% Fee
29 0.051% 0.030% 0.020% Leasehold
30 0.051% 0.030% 0.020% Fee
31 0.051% 0.030% 0.020% Fee
32 0.051% 0.030% 0.020% Fee
33 0.051% 0.030% 0.020% Leasehold
34 0.051% 0.030% 0.020% Fee
35 0.051% 0.030% 0.020% Fee
36 0.051% 0.030% 0.020% Fee
37 0.051% 0.030% 0.020% Fee
38 0.051% 0.030% 0.020% Fee
39 0.051% 0.030% 0.020% Fee
40 0.051% 0.030% 0.020% Fee
41 0.051% 0.030% 0.020% Fee
42 Fee
42.1 0.051% 0.030% 0.020% Fee
42.2 0.051% 0.030% 0.020% Fee
42.3 0.051% 0.030% 0.020% Fee
42.4 0.051% 0.030% 0.020% Fee
43 0.051% 0.030% 0.020% Fee
44 0.051% 0.030% 0.020% Fee
45 0.051% 0.030% 0.020% Fee
46 0.041% 0.020% 0.020% Fee
47 0.051% 0.030% 0.020% Fee
48 0.051% 0.030% 0.020% Fee
49 0.051% 0.030% 0.020% Leasehold
50 0.051% 0.030% 0.020% Fee
51 0.051% 0.030% 0.020% Fee
52 0.051% 0.030% 0.020% Fee
53 0.091% 0.070% 0.020% Fee
54 0.041% 0.020% 0.020% Fee
55 0.051% 0.030% 0.020% Fee
56 0.041% 0.020% 0.020% Fee
57 0.071% 0.050% 0.020% Fee
58 0.041% 0.020% 0.020% Fee
59 0.071% 0.050% 0.020% Fee
60 0.051% 0.030% 0.020% Fee
61 0.041% 0.020% 0.020% Fee
62 0.051% 0.030% 0.020% Fee
63 0.051% 0.030% 0.020% Fee
64 0.041% 0.020% 0.020% Fee
65 0.051% 0.030% 0.020% Fee
66 0.041% 0.020% 0.020% Fee
67 0.041% 0.020% 0.020% Fee
68 0.051% 0.030% 0.020% Fee
69 0.051% 0.030% 0.020% Fee
70 0.041% 0.020% 0.020% Fee/Leasehold
71 0.051% 0.030% 0.020% Fee
72 0.051% 0.030% 0.020% Fee
73 0.051% 0.030% 0.020% Fee
74 0.091% 0.070% 0.020% Fee
75 0.051% 0.030% 0.020% Fee
76 0.051% 0.030% 0.020% Fee
77 0.101% 0.080% 0.020% Fee
78 0.051% 0.030% 0.020% Fee
79 0.051% 0.030% 0.020% Fee
80 0.041% 0.020% 0.020% Fee
81 0.051% 0.030% 0.020% Fee
82 0.051% 0.030% 0.020% Fee
83 0.081% 0.060% 0.020% Fee
84 0.051% 0.030% 0.020% Fee
85 0.041% 0.020% 0.020% Fee
86 0.051% 0.030% 0.020% Fee
87 0.051% 0.030% 0.020% Fee
88 0.041% 0.020% 0.020% Fee
89 0.051% 0.030% 0.020% Fee
90 0.101% 0.080% 0.020% Fee
91 0.051% 0.030% 0.020% Fee
92 0.041% 0.020% 0.020% Fee
93 0.051% 0.030% 0.020% Fee
94 0.041% 0.020% 0.020% Fee
95 0.041% 0.020% 0.020% Fee
Sequence Cross-Collateralized Loans Original Amortization (months) ARD Loan Grace Period Loan Group
-------- -------------------------- ------------------------------ -------- ----------------------- ----------
1 No 0 Interest Only 1
2 No 0 Interest Only 1
3 No 360 IO, Balloon 1
4 No 360 IO, Balloon 1
5 No 0 Interest Only 1
6 No 360 IO, Balloon 1
7 No 360 IO, Balloon 1
8 No 0 Interest Only 2
9 No 360 Balloon 1
10 No 0 Interest Only 1
11 No 0 Interest Only 1
12 No 360 IO, Balloon 2
13 No 0 Interest Only 1
14 No 360 Balloon 1
15 No 360 IO, Balloon 2
16 No 360 IO, Balloon 1
17 No 360 IO, Balloon 1
18 1
18.1 Yes - BACM 07-5 A 360 IO, Balloon 1
18.2 Yes - BACM 07-5 A 360 IO, Balloon 1
18.3 Yes - BACM 07-5 A 360 IO, Balloon 1
19 No 0 Interest Only 2
20 No 0 Interest Only 1
21 No 0 Interest Only 1
22 No 360 Balloon 1
23 No 360 IO, Balloon 1
24 No 0 Interest Only 1
25 No 360 IO, Balloon 1
26 No 0 Interest Only 1
27 No 360 IO, Balloon 2
28 No 360 Balloon 2
29 No 360 IO, Balloon 1
30 No 0 Interest Only 2
31 No 360 Balloon 1
32 No 360 IO, Balloon 1
33 No 0 Interest Only 1
34 No 0 Interest Only 1
35 No 360 IO, Balloon 2
36 No 360 IO, Balloon 1
37 No 360 IO, Balloon 1
38 No 240 Balloon 1
39 No 0 Interest Only 1
40 No 360 IO, Balloon 1
41 No 360 IO, Balloon 1
42 1
42.1 Yes - BACM 07-5 B 0 Interest Only 1
42.2 Yes - BACM 07-5 B 0 Interest Only 1
42.3 Yes - BACM 07-5 B 0 Interest Only 1
42.4 Yes - BACM 07-5 B 0 Interest Only 1
43 No 360 Balloon 1
44 No 360 IO, Balloon 1
45 No 360 Balloon 2
46 No 360 IO, Balloon 1
47 No 0 Yes Interest Only, Hyper Am 1
48 No 360 IO, Balloon 1
49 No 316 Balloon 1
50 No 360 Balloon 2
51 No 360 IO, Balloon 1
52 No 360 Balloon 1
53 No 360 IO, Balloon 1
54 No 360 IO, Balloon 1
55 No 360 IO, Balloon 1
56 No 360 IO, Balloon 1
57 No 360 Balloon 1
58 No 0 Interest Only 1
59 No 360 Balloon 1
60 No 360 Balloon 1
61 No 360 IO, Balloon 1
62 No 360 Balloon 1
63 No 360 Balloon 1
64 No 360 Balloon 1
65 No 360 IO, Balloon 1
66 No 360 Balloon 1
67 No 240 Balloon 1
68 No 360 Balloon 1
69 No 360 IO, Balloon 2
70 No 360 IO, Balloon 1
71 No 360 IO, Balloon 1
72 No 360 IO, Balloon 1
73 No 360 Balloon 1
74 No 360 IO, Balloon 2
75 No 360 IO, Balloon 1
76 No 360 Balloon 2
77 No 240 Balloon 1
78 No 360 IO, Balloon 2
79 No 360 Balloon 1
80 No 300 IO, Balloon 1
81 No 360 IO, Balloon 1
82 No 360 Balloon 1
83 No 360 IO, Balloon 1
84 No 360 IO, Balloon 1
85 No 360 Balloon 1
86 No 360 Balloon 1
87 No 360 IO, Balloon 1
88 No 360 Balloon 1
89 No 360 Balloon 2
90 No 360 Balloon 2
91 No 360 Balloon 1
92 No 360 Balloon 1
93 No 360 Balloon 1
94 No 300 Balloon 1
95 No 360 Balloon 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 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 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 a zoning endorsement covering any loss to the mortgagee
resulting from such non-conformity or (4) 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, 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 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, (G) 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, (H) 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 (I) 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
November 15, 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, 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, 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 been properly designated and
currently so serves 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 $260,980,392.
(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 REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
REPRESENTATION 4
No Holdbacks; Improvements Complete or Escrows Established.
-----------------------------------------------------------
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A holdback reserve of $6,100,000 was
taken upon the closing of the Mortgage
Loan. Prior to the Holdback Triggering
Date (defined below), lender is required
to release such Holdback Reserve Funds
to the Mortgage Borrower as follows: (A)
$5,905,000 upon delivery of evidence
that a Holdback Release Event has
occurred and (B) $195,000 upon delivery
of evidence that both DCAS Tenant and
Garage Tenant have commenced paying rent
under their prospective leases. If on
the Holdback Triggering Date, a Holdback
0000 00xx Xxxxxx (3404906) Release Event has not occurred, lender
has the right to apply all or a portion
of the Holdback Reserve Funds to the
Mortgage Loan. The related Mortgage
Borrower is entitled to two
disbursements only. Any amount remaining
in the Holdback Reserve Account after
the Mortgage Loan has been paid in full
must be returned to the Mortgage
Borrower. The date that is 9 months from
the Sept. 11, 2007 closing date is the
Holdback Triggering Date. The Holdback
Release Event is defined as the delivery
by tenant to the Mortgage Lender of (i)
the DCAS Tenant Satisfactory Estoppel
Letter and (ii) the Garage Tenant
Satisfactory Estoppel Letter.
--------------------------------------------------------------------------------
Upon the closing of the related Mortgage
Loan, the Mortgagor deposited with
lender a letter of credit in the sum of
$1,226,499.00 into the Home Products
Reserve Account, which amount is to be
held as additional security for the
Midway Business Center (3403292) Mortgage Loan until the Mortgage Loan
has been paid in full. Upon the
occurrence of and during the continuance
of an event of default under the Loan
Documents and in the event lender has
elected to accelerate the Mortgage Loan,
lender has the right to apply the Home
Products Reserve Funds to the payment of
the Mortgage Loan.
--------------------------------------------------------------------------------
Upon the closing of the related Mortgage
Loan, the Mortgagor deposited with
lender $1,737,391.72 into a debt service
reserve account. On or before June 1,
2010, Borrower will have the one time
right to a disbursement of an amount
equal to (1) $2,235,350 minus (2) the
amount which, if subtracted from
$31,450,000, would provide for a debt
000 Xxxxxxxx Xxxxx (0000000) xxxxxxx coverage ratio of 1.20x. In
addition, the related Borrower is
entitled to a disbursement from such
reserve of upon confirmation that Metro
PCs Pennsylvania, LLC confirmed to the
mortgagee in an estoppel that such
tenant is in occupancy of its space on a
rent paying basis and that the rent
concession has expired and an additional
one-time disbursement of not less than
$500,000 upon delivery of an invoice for
tenant improvements to mortgagee.
--------------------------------------------------------------------------------
Upon the closing of the related Mortgage
Loan, the Mortgagor deposited with
lender $225,000 into a holdback reserve
account. Mortgagor can obtain a release
of such reserve in an amount equal to
the amount (if any) by which such
reserve funds exceed the positive
difference between (i) the then
outstanding principal balance of the
Mortgage Loan and (ii) the principal
Silver Creek Apartments (3407811) balance of the Mortgage Loan which would
support a debt service coverage ratio of
1.30x. If any funds remain on deposit in
the holdback reserve account on the date
which is twelve (12) months after the
closing of the Mortgage Loan, the
mortgagee may use such funds to pay down
the Mortgage Loan.
The closing date of the related Mortgage
Loan was July 18, 2007.
--------------------------------------------------------------------------------
Upon the closing of the related Mortgage
Loan, the Mortgagor deposited with
lender a $2,170,000 holdback letter of
credit. Mortgagor can obtain not more
than three reductions of such letter of
credit in accordance with the following
conditions:
(i) Mortgagor must give Mortgagee
30 days' prior written notice of the
requested disbursement,
(ii) Mortgagor must provide
Xxxxxx Expressway (59739) Mortgagee all necessary certificates
of occupancy for the Mortgaged
Property and
(iii) the amount of the requested
release, when added to the original
principal amount of the Note, must
cause the debt service coverage ratio
for the Mortgaged Property to be not
less than 1.20x.
If the foregoing conditions are not
satisfied by the scheduled payment date
occurring in October 2009, the mortgagee
is required to draw upon the letter of
credit and use the funds to pay down the
Mortgage Loan.
--------------------------------------------------------------------------------
A $6,000,000 debt service coverage ratio
reserve was collected upon the closing
date of the related Mortgage Loan. The
mortgagee is required to disburse the
debt service coverage ratio reserve
Green Oak Village Place (3403670) funds to Mortgagor if, among other
things, the debt service coverage ratio
is at least 1.15x. In the event that the
conditions for the release of such
reserve are not satisfied by the payment
date occurring in March 2010, the
mortgagee has the option to use the
funds to pay down the Mortgage Loan.
--------------------------------------------------------------------------------
A holdback of $652,000 was taken upon
the closing date of the related Mortgage
Loan and provided no event of default
has occurred, the Mortgagor may require
the mortgagee to release so much of the
holdback remaining in escrow, which when
added with the outstanding principal
amount(s) previously advanced, provides
for a minimum debt service coverage
ratio equal to 1.20x amortized on a
Xxxxxxx Plaza (3408309) trailing three month basis as determined
by the mortgagee based on underwritten
cash flow. Additionally, the release is
subject to Mortgagor obtaining a lease
renewal for Dollar Tree for not less
than 5 years. If on the date which is 24
month after the closing date of the
related Mortgage Loan any of the
holdback funds have not been released,
such amounts may be applied to the
Mortgage Loan.
The closing date of the related Mortgage
Loan was October 29, 2007.
--------------------------------------------------------------------------------
A holdback reserve of $376,000 was taken
on the closing date of the related
Mortgage Loan. Mortgagor can obtain a
release of such funds, provided that the
mortgagee is in receipt of evidence
that:
Del Paso Retail (3409100) (i) the debt service coverage
ratio is at least 1.20x,
(ii) the Mortgaged Property has a
12 month history of stable operations
(determined in mortgagee's sole
discretion) and
(iii) the Mortgaged Property is at
least 95% occupied by tenants under
Leases which comply with the terms of
the related loan agreement.
If the foregoing conditions are not
satisfied within 24 months of the
November 14, 2007 Mortgage Loan closing
date, the mortgagee may use the funds to
reduce the principal balance under the
Mortgage Note or hold the funds as
additional collateral for the Mortgage
Loan.
--------------------------------------------------------------------------------
REPRESENTATION 6
Assignment of Leases and Rents.
-------------------------------
--------------------------------------------------------------------------------
To the extent that the related Mortgage Loan Mortgagor leases all or part of the
related Mortgaged Property to a master lessee, which master lessee enters into
leases with tenants of such related Mortgaged Property, such master lessee owns
an interest in any payments due under such related leases.
--------------------------------------------------------------------------------
REPRESENTATION 9
Mortgage Lien.
--------------
--------------------------------------------------------------------------------
Cincinnati MOB Portfolio (3406143) The Mortgaged Property is subject to
five Ground Leases. The related ground
lessor possesses a right of first
refusal to purchase the Mortgagor's
interest in the Ground Leases and the
Mortgaged Property in the event that the
Mortgagor sells the Mortgaged Property.
--------------------------------------------------------------------------------
REPRESENTATION 10
UCC Filings.
------------
--------------------------------------------------------------------------------
Summit Apartments - San Marcos, TX A UCC-1 Financing Statement has not been
(3405234) filed with the secretary of state of
Texas.
--------------------------------------------------------------------------------
REPRESENTATION 12
Condition of Mortgaged Property; No Condemnation; No Encroachments.
-------------------------------------------------------------------
--------------------------------------------------------------------------------
Northbelt Corporate Center (3407581) No repair reserve funds were required to
be escrowed, however the Mortgaged
Property Condition Report noted that
certain finishes on the entrances,
common areas and corridors needed to be
completed, some HVAC replacement and
certain other repairs need to be
completed.
--------------------------------------------------------------------------------
REPRESENTATION 14
Insurance.
----------
--------------------------------------------------------------------------------
Some Loan Documents provide that the loss of rents or income, as applicable,
will be insured until completion of Restoration or the expiration of twelve (12)
months, whichever first occurs.
--------------------------------------------------------------------------------
Xxxxxx Expressway (59739) The related Mortgaged Property is
located in the State of California;
Visconti (3400666) however seismic insurance may not be
maintained.
Xxxxxxxxx Crossings (3401239)
Cypress I (3405620)
2404 Wilshire Lofts (3405735)
Xxxxx Xxxxxx Building (3406564)
Superior Self Storage (3406736)
Friar's Village Shopping Center
(3407751)
Del Sol Inn (3408299)
0000 Xxxxxxxx Xxxxx (3409042)
Frontier Dental (3409088)
Del Paso Retail (3409100)
--------------------------------------------------------------------------------
CVS Portfolio Louisiana (3406312) The related Mortgaged Property is
located in Texas, Louisiana,
CVS - Gulfport (3406313) Mississippi, Alabama, Georgia, North
Carolina or South Carolina; however
windstorm insurance may not be
maintained.
--------------------------------------------------------------------------------
Rite Aid (Dallas) - Shavertown, PA The insurance required by the related
(3405720) Lease is deemed to satisfy the related
Loan Document insurance requirements.
0000 Xxxxxxxx (3405857)
CVS Portfolio Texas (3405982)
Stock Building Supply (3405991)
Rite Aid - East Stroudsburg, PA
(3406286)
CVS Portfolio Louisiana (3406312)
CVS - Gulfport (3406313)
Walgreens - Youngstown (3407103)
Walgreens - Arvada (3407481)
Walgreens - Niles (3408175)
Walgreens - Xxxxx (3408176)
Walgreens - Ft. Xxxxxxx (3408177)
--------------------------------------------------------------------------------
Xxxxxx Expressway (59739) The related Mortgage Loan amount exceeds
$20,000,000; however, the related Loan
Lake Pleasant Pavilion (3402394) Documents require the insurer(s) to have
a claims paying ability rating of "BBB"
Eastern Silverado Center (3405207) or better by Standard & Poor's and
"Baa2" by Moody's (or such other ratings
Xxxxxxx Commons (3405433) promulgated from time to time by
Standard & Poor's and Moody's for
Cypress I (3405620) properties and transactions similar in
type and size to the Mortgaged Property
Northampton Village I (3406008) and the Mortgage Loan) and/or a general
policy rating of "A" or better and a
financial class of "VIII" or better by
A.M. Best Company, Inc.
--------------------------------------------------------------------------------
0000 00xx Xxxxxx (3404906) The related Mortgage Loan amount exceeds
$20,000,000; however, the related Loan
Documents require the insurer(s) to have
a claims paying ability rating of "BBB"
or better by Standard & Poor's and
"Baa2" by Moody's (or such other ratings
promulgated from time to time by
Standard & Poor's and Moody's for
properties and transactions similar in
type and size to the Mortgaged Property
and the Mortgage Loan) and/or a general
policy rating of "A-" or better and a
financial class of "XV" or better by
A.M. Best Company, Inc.
--------------------------------------------------------------------------------
Midtown Retail (3406690) With respect to two parcels of the
Mortgaged Property, the insurance
required by the related lease is deemed
to satisfy the related Loan Document
insurance requirements.
--------------------------------------------------------------------------------
000 0xx Xxxxxx (3402195) Terrorism insurance is not required for
the Mortgaged Property; however, there
currently is terrorism insurance in
place for such Mortgaged Property under
an umbrella policy.
--------------------------------------------------------------------------------
Xxxxx Xxxxxx Building (3406564) The related Mortgagor's obligation to
maintain terrorism insurance is subject
to a cap in the amount of premiums the
related Mortgagor is obligated to pay
for such insurance. In addition, an
approved indemnitor may supply a
guaranty in lieu of terrorism insurance.
--------------------------------------------------------------------------------
Xxxxxxx Center (3406454) The related Mortgagor's obligation to
maintain terrorism insurance is subject
Sawgrass Xxxxx (3407000) to a cap in the amount of premiums the
related Mortgagor is obligated to pay
Arundel Xxxxx (3407568) for such insurance.
1010 Executive Center (3407968)
The Sherwood Corporate Center
(3408015)
Xxxxxxx Oaks Marriott (3408214)
--------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxx (3406633) In the event that the Terrorism Risk
Insurance Act is no longer in effect,
the insurance premiums payable by the
Mortgagor for terrorism insurance
coverage must not exceed 200% of the
cost of stand-alone terrorism insurance
coverage as of the closing date of the
Mortgage Loan, as adjusted for increases
in the consumer price index.
--------------------------------------------------------------------------------
Xxxxxxx Center (3406454) The Mortgage Loan amount exceeds $20
million and the related loan agreement
requires insurers to "have the following
claims paying ability ratings by at
least two Rating Agencies, one of which
must be S&P or such other Rating
Agencies approved by the mortgagee: (i)
for the coverages referenced in Sections
8.1(a)(i), (iii), (viii) and (x) hereof;
(A) sixty percent (60%) of the insurance
coverage must be provided by insurance
carriers with ratings of "AA" or better,
(B) thirty percent (30%) of the
insurance coverage (exclusive of that in
Section 8.1(b)(i)(A) above (terrorism
coverage)) must be provided by insurance
carriers with a rating of "BB" or
better; and (C) up to ten percent (10%)
of the insurance coverage may be
provided by insurance carriers that are
not rated by S&P, provided, however,
such carriers must have an A.M. Best
Company, Inc. (Best) claims paying
ability of "A" or better and a financial
size category of not less than "X"; and
(ii) for the coverages referenced in
subsection 8.1(a)(ii), (iv), (v), (vi)
and (viii) hereof, one hundred percent
(100%) of the insurance coverage must be
provided by insurance carriers with a
rating of "A" or better."
--------------------------------------------------------------------------------
Gander Mountain Waukesha (3407919) The related Mortgagor is not required to
maintain terrorism coverage if the
Mortgaged Property has been transferred
to a Permitted Inland Entity, provided,
that (i) Mortgagor notifies the
mortgagee that it will self-insure, (ii)
the applicable Permitted Inland Entity
transferee ("Terrorism Guarantor")
executes a guaranty for payment to the
mortgagee of any sums which Mortgagor
has elected to self-insure that would
have been payable under the coverage
otherwise required, (iii) Terrorism
Guarantor has a minimum net worth of
$300,000,000 and maintains a direct or
indirect ownership interest in
Mortgagor, and (iv) the aggregate LTV
for all properties on which Terrorism
Guarantor has a direct or indirect
ownership interest does not exceed 55%
(except that LTV may exceed 55% for a
period of no more than 6 months out of
any 12 month period either (a) during
the time period that Terrorism Guarantor
is offering securities to the public or
(b) in the business judgment of
Terrorism Guarantor, exceeding 55% LTV
is necessary given existing credit
environment, but in no event must LTV
exceed (1) 65% if guarantor's net worth
is greater than or equal to $300,000,000
and less than $400,000,000 or (2) 70% if
guarantor's net worth is at least
$400,000,000.
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The loan amount is above $20 million,
and the related loan agreement provides
Arundel Xxxxx (3407568) that, depending on the number of
insurers, up to 40% may have a claims
paying ability rating of "BBB" or
better.
--------------------------------------------------------------------------------
REPRESENTATION 17
Additional Collateral.
----------------------
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The related Mortgage Loan, is part of a
split loan structure comprised of five
pari passu notes totaling $820,000,000
(Sawgrass Xxxxx Note A-1 $150,000,000
held by the trust established in
connection with the issuance of the X.X.
Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP12, Commercial
Mortgage Pass-Through Certificates,
Series 2007-LDP12; Sawgrass Xxxxx Note
A-2 $139,411,765 held by the trust
established in connection with the
issuance of the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series
2007-CIBC20; Sawgrass Xxxxx Note A-3
$132,647,059 held by the trust
established in connection with the
issuance of the Banc of America
Commercial Mortgage Inc., Commercial
Pass-Through Certificates, Series 2007-4
Sawgrass Xxxxx Note A-4 $132,647,059
included in the Trust Fund; and Sawgrass
Xxxxx Note A-5 $265,294,117 held by
Nomura Credit & Capital, Inc.) and three
subordinate notes totaling $30,000,000
(Sawgrass Xxxxx Note B-1 $10,588,235.30
held by JPMorgan Chase Bank, N.A.,
Sawgrass Xxxxx Note B-2 $9,705,882.35
held by Bank of America, N.A. and
Sawgrass Xxxxx Note B-3 $9,705,882.35
held by Nomura Credit & Capital, Inc.).
--------------------------------------------------------------------------------
Arundel Xxxxx (3407568) The $128,333,333 Note A-2 is in the
pool, but the $128,333,334 Note A-1 and
$128,333,333 Note A-3 are not. The Note
A-1, Note A-2 and Note A-3 are pari
passu.
--------------------------------------------------------------------------------
Xxxxx Xxxxxx Building (3406564) The $99,600,000 Note A is in the pool,
but the $10,700,000 Note B is not. The
Note B was sold to CBRE Realty Finance,
and there is an Intercreditor Agreement
dated July 3, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
Green Oak Village Place (3403670) The $67,525,000 Note A is in the pool,
but the $7,475,000 Note B is not. The
Note B is held by Bank of America, N.A.
and there is an Intercreditor Agreement
dated December 1, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
West Hartford Portfolio (3404396) The $37,179,141 Note A is in the pool,
but the $2,798,430 Note B is not. The
Note B was sold to RCG Longview, and
there is an Intercreditor Agreement
dated August 20, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
CVS Portfolio Texas (3405982) For CVS Portfolio Texas $12,060,000 Note
A-2 is in the pool, but the $12,060,000
Note A-1 is not. The CVS Portfolio Texas
Note A-1 and Note A-2 are pari passu.
CVS Portfolio Louisiana (3406312) For CVS Portfolio Louisiana $12,717,500
Note A-2 is in the pool, but the
$12,717,500 Note A-1 is not. The CVS
Portfolio Louisiana Note A-1 and Note
A-2 are pari passu.
CVS - Gulfport (3406313) For CVS - Gulfport $1,722,500 Note A-2
is in the pool, but the $1,722,500 Note
A-1 is not. The CVS - Gulfport Note A-1
and Note A-2 are pari passu.
--------------------------------------------------------------------------------
REPRESENTATION 22
Whole Loan; Interest Only; No Equity Participation or Contingent Interest.
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
Visconti (3400666)
The Pointe at Bridgeport (3403431)
Xxxxxx Xxxxx Shopping Center
(3404603)
0000 00xx Xxxxxx (3404906)
Stock Building Supply (3405991)
Northampton Village I (3406008)
South Slope (3406011)
Cincinnati MOB Portfolio (3406143)
Simply Self Storage Portfolio II
(3406190)
Xxxxxxx Office (3406454)
Xxxxx Xxxxxx Building (3406564) The related Mortgage Loan is
interest-only for the term.
000 Xxxxxxxx Xxxxx (3406633)
Sawgrass Xxxxx (3407000)
0 Xxxxxxxx Xxxx (0000000)
Xxxxxxxxx - Xxxxxx (3407481)
0000 Xxxxxxxxx Xxxxxx (3407789)
Gander Mountain Waukesha (3407919)
Sherwood Corporate Center (3408015)
Walgreens - Niles (3408175)
Walgreens - Xxxxx (3408176)
Walgreens - Ft. Xxxxxxx (3408177)
--------------------------------------------------------------------------------
CVS Portfolio Texas (3405982)
The related Mortgage Loan is
CVS Portfolio Louisiana (3406312) interest-only for 6 years.
CVS - Gulfport (3406313)
--------------------------------------------------------------------------------
Lake Pleasant Pavilion (3402394)
Green Oak Village Place (3403670)
Xxxxxxx Commons (3405433)
Cypress I (3405620)
2404 Wilshire Lofts (3405735)
Colonnade at Kings Grant (3405948) The related Mortgage Loan is
interest-only for 5 years.
Superior Self Storage (3406736)
000 Xxxxx Xxxxxx (3406741)
Summit Office Campus (3407712)
Friar's Village Shopping Center
(3407751)
CVS - Federal Hill (3408238)
--------------------------------------------------------------------------------
Xxxxxx Expressway (59739)
Xxxxxxxxx Crossings (3401239)
Bella Sonoma II (3402986)
Issaquah Highlands Town Center
(3404354)
Cliffbrook Condominiums (3404896)
Summit Apartments - San Marcos, TX The related Mortgage Loan is
(3405234) interest-only for 3 years.
000 Xxxxxxxxx Xxxxxx (3406099)
Harwin-Point West (3407545)
Arundel Xxxxx (3407568)
Sovereign Bank Building (0000000)
0000 Xxxx Xxxxxx (3407946)
1010 Executive Center (3407968)
Olde Towne Marketplace (3408543)
--------------------------------------------------------------------------------
West Hartford Portfolio (3404396)
Richmar Plaza (3405205)
Eastern Silverado Center (3405207)
Holiday Inn San Antonio (3405632) The related Mortgage Loan is
interest-only for 2 years.
Midtown Retail (3406690)
North Xxxxxx Center (3407104)
River Place Office (3409024)
--------------------------------------------------------------------------------
Northbelt Corporate Center (3407581) The related Mortgage Loan is
interest-only for 1 year.
--------------------------------------------------------------------------------
Frontier Dental (3409088) The related Mortgage Loan is
interest-only for 6 months.
--------------------------------------------------------------------------------
REPRESENTATION 23
Transfers and Subordinate Debt.
-------------------------------
--------------------------------------------------------------------------------
Cincinnati MOB Portfolio (3406143) The Mortgaged Property is subject to
five Ground Leases. In the event of a
default by Mortgagor under the related
Loan Documents which results in a
foreclosure sale or similar sale of the
Mortgaged Property, the related Ground
Lessor may purchase from the mortgagee
any notes, mortgage and Loan Documents
for an amount equal to the outstanding
principal, interest and any other
amounts due under the Loan Documents.
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The related Mortgage Loan, is part of a
split loan structure comprised of five
pari passu notes totaling $820,000,000
(Sawgrass Xxxxx Note A-1 $150,000,000
held by the trust established in
connection with the issuance of the X.X.
Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP12, Commercial
Mortgage Pass-Through Certificates,
Series 2007-LDP12; Sawgrass Xxxxx Note
A-2 $139,411,765 held by the trust
established in connection with the
issuance of the X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series
2007-CIBC20; Sawgrass Xxxxx Note A-3
$132,647,059 held by the trust
established in connection with the
issuance of the Banc of America
Commercial Mortgage Inc., Commercial
Pass-Through Certificates, Series 2007-4
Sawgrass Xxxxx Note A-4 $132,647,059
included in the Trust Fund; and Sawgrass
Xxxxx Note A-5 $265,294,117 held by
Nomura Credit & Capital, Inc.) and three
subordinate notes totaling $30,000,000
(Sawgrass Xxxxx Note B-1 $10,588,235.30
held by JPMorgan Chase Bank, N.A.,
Sawgrass Xxxxx Note B-2 $9,705,882.35
held by Bank of America, N.A. and
Sawgrass Xxxxx Note B-3 $9,705,882.35
held by Nomura Credit & Capital, Inc.).
--------------------------------------------------------------------------------
Arundel Xxxxx (3407568) The $128,333,333 Note A-2 is in the
pool, but the $128,333,334 Note A-1 and
$128,333,333 Note A-3 are not. The Note
A-1, Note A-2 and Note A-3 are pari
passu.
--------------------------------------------------------------------------------
Xxxxx Xxxxxx Building (3406564) The $99,600,000 Note A is in the pool,
but the $10,700,000 Note B is not. The
Note B was sold to CBRE Realty Finance,
and there is an Intercreditor Agreement
dated July 3, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
Green Oak Village Place (3403670) The $67,525,000 Note A is in the pool,
but the $7,475,000 Note B is not. The
Note B is held by Bank of America, N.A.
and there is an Intercreditor Agreement
dated December 1, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
West Hartford Portfolio (3404396) The $37,179,141 Note A is in the pool,
but the $2,798,430 Note B is not. The
Note B was sold to RCG Longview, and
there is an Intercreditor Agreement
dated August 20, 2007 subordinating the
Note B to the Note A.
--------------------------------------------------------------------------------
CVS Portfolio Texas (3405982) For CVS Portfolio Texas $12,060,000 Note
A-2 is in the pool, but the $12,060,000
Note A-1 is not. The CVS Portfolio Texas
Note A-1 and Note A-2 are pari passu.
CVS Portfolio Louisiana (3406312) For CVS Portfolio Louisiana $12,717,500
Note A-2 is in the pool, but the
$12,717,500 Note A-1 is not. The CVS
Portfolio Louisiana Note A-1 and Note
A-2 are pari passu.
CVS - Gulfport (3406313) For CVS - Gulfport $1,722,500 Note A-2
is in the pool, but the $1,722,500 Note
A-1 is not. The CVS - Gulfport Note A-1
and Note A-2 are pari passu.
--------------------------------------------------------------------------------
REPRESENTATION 24
(24) Waivers and Modification.
------------------------------
--------------------------------------------------------------------------------
Green Oak Village Place (3403670) Pursuant to a note splitter dated
December 1, 2007, the original
$75,000,000 loan was split into a
$67,525,000 Note A and a $7,475,000 Note
B.
--------------------------------------------------------------------------------
REPRESENTATION 26
Releases of Mortgaged Property.
-------------------------------
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The related Mortgagor may (i) make
transfers of immaterial or non-income
Arundel Xxxxx (3407568) producing portions of the Mortgaged
Property to any federal, state or local
government or any political subdivision
thereof in connection with takings or
condemnations of any portion of the
Mortgaged Property for dedication or
public use, (ii) make transfers of
non-income producing portions of the
Mortgaged Property, including portions
of the Mortgaged Property's "ring road"
to third parties, including, owners of
out parcels and department store pads,
pads for office buildings, hotels or
other properties for the purpose of
erecting and operating additional
structures or parking facilities whose
use is integrated and consistent with
the use of the Mortgaged Property and
(iii) dedicate portions of the Mortgaged
Property or grant easements,
restrictions, covenants, reservations
and rights of way in the ordinary course
of business for traffic circulation,
ingress, egress, parking, access,
utilities lines or for other similar
purposes; provided, however, it must be
a condition to any of the transfers in
(ii) and (iii) above that no transfer,
conveyance or other encumbrance will
result in a Material Adverse Effect as
stated in an Officer's Certificate.
In connection with the sale of air
rights above the Improvements to a third
party for development of a condo or
vertical space subdivision of
improvements to be constructed by such
third party, the mortgagee is required
to partially release from the lien of
its security such air space for no
consideration.
--------------------------------------------------------------------------------
Arundel Xxxxx (3407568) In connection with the sale of air
rights above the Improvements located on
the Property to a third party for
development of a condominium or vertical
space subdivision of improvements to be
constructed by such third party or sold
in the air space, the mortgagee will
also partially release from the lien of
its security such air space for no
consideration to be paid by the related
Borrower or Guarantor to the mortgagee.
The mortgagee is permitted to require a
REMIC opinion.
--------------------------------------------------------------------------------
Xxxxxxx Oaks Marriott (3408214) Provided no event of default exists
under the Loan Documents, the Mortgagor
may obtain the release of the "Right of
Way" (as defined in the Loan Documents)
from the lien of the Mortgage upon the
satisfaction of the terms and conditions
set forth in the Loan Documents,
including, but not limited to: (i) the
Right of Way must be conveyed to the
appropriate governmental entity; (ii)
the Mortgagor must deliver evidence to
the mortgagee that the remaining
property materially complies with all
applicable zoning laws; (iii) the
mortgagee must receive endorsements to
the title policy insuring that the title
insurance policy is not adversely
impaired by such release; (iv) the
release must not violate the terms of
the related hotel franchise agreement;
and (v) the Mortgagor must submit a
release of lien to the mortgagee for
execution and pay all of the mortgagee's
costs and expenses in connection with
review of such release or the review of
any other documentation reasonably
requested by the mortgagee.
--------------------------------------------------------------------------------
West Hartford Portfolio (3404396) The related Loan Documents permit the
related borrower to obtain the release
of one or more of the individual
properties from the lien of the related
Mortgaged Property at any time after
March 1, 2008 subject to the
satisfaction of certain conditions,
including, but not limited to: (i) no
event of default has occurred and is
continuing; (ii) payment by the related
borrower of (A) 115% of allocated loan
amount applicable to any individual
property in the "Forest Portfolio" (as
such term is used in the related Loan
Documents), (B) 110% of allocated loan
amount applicable to any individual
property in the "Xxxxxx Portfolio" (as
such term is used in the related Loan
Documents) or (C) 100% of allocated loan
amount applicable to any individual
property in the "Woodland Portfolio" (as
such term is used in the related Loan
Documents), which such payment will be
allocated between the related Note A and
Note B in the mortgagee's sole
discretion; provided that such payment
must not reduce the outstanding
principal balance of the related
Mortgage Loan to less than $20,000,000;
(iii) the debt service coverage ratio of
the related Mortgaged Property remaining
following such release must not be less
than (Y) 1.20x with respect to the Note
A and (Z) 1.05x with respect to the
related Note A and Note B on an
aggregate basis; and (v) if required by
the mortgagee, the mortgagee must
receive confirmation from the rating
agencies that the release of such
individual property will not result in a
qualification, downgrade or withdrawal
of the ratings issued, or to be issued,
in connection with a securitization
involving the related Mortgage Loan.
--------------------------------------------------------------------------------
Cincinnati MOB Portfolio (3406143) The related Loan Documents permit the
related borrower to obtain the release
of an individual property from the lien
of the related Mortgaged Property at any
time after July 20, 2008 subject to the
satisfaction of certain conditions,
including, but not limited to: (i) no
event of default has occurred and is
continuing; (ii) payment by the related
borrower of 115% of allocated loan
amount applicable to such individual
property; (iii) after giving effect to
such release the debt service coverage
ratio for the remaining Mortgaged
Property must be at least equal to the
greater of (A) the debt service coverage
ratio for the 12 full calendar months
preceding the closing date of the
Mortgage Loan and (B) the debt service
coverage ratio for all of the then
remaining individual properties for the
12 full calendar months preceding such
release; and (iv) the mortgagee must
receive evidence that the individual
property to be released will be conveyed
to a person other than the related
borrower or borrower principal.
--------------------------------------------------------------------------------
REPRESENTATION 27
Defeasance.
-----------
--------------------------------------------------------------------------------
With respect to certain of the Mortgage Loans, the substitute collateral
constituting "government securities" is required to be in an amount sufficient
to make all scheduled payments through the end of the prepayment lockout period
rather than through the maturity date of the related Mortgage Loan.
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) In connection with a defeasance, the
related Mortgagor is not responsible for
Arundel Xxxxx (3407568) the payment of servicing fees in excess
of $10,000.
--------------------------------------------------------------------------------
REPRESENTATION 28
Local Law Compliance; Non-Conforming Uses or Improvements.
----------------------------------------------------------
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) Section V of the zoning report for the
Mortgaged Property notes several
outstanding building and zoning
violations with respect to the Mortgaged
Property. The zoning report states that
the failure to resolve the outstanding
zoning violations will result in fines
and assessments by the municipality
against the owner of the Mortgaged
Property.
--------------------------------------------------------------------------------
REPRESENTATION 30
Single-Purpose Entity.
----------------------
--------------------------------------------------------------------------------
The mortgage lender typically does not require that a Mortgagor have an outside
independent director or member in connection with mortgage loans with an
original principal balance of less than $30,000,000.
--------------------------------------------------------------------------------
Walgreens - Xxxxx (3408176) The aggregate original principal balance
of these related, cross-collateralized
Walgreens - Niles (3408175) Mortgage Loans is in excess of
$5,000,000; however one Mortgagor owns
both of the Mortgaged Properties.
--------------------------------------------------------------------------------
000 0xx Xxxxxx (3402195) The original principal balance of the
related Mortgage Loan is in excess of
$15,000,000; however Mortgagor's
organizational documents do not contain
separateness provisions.
--------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxx (3406633) The original principal balance of the
related Mortgage Loan is in excess of
$30,000,000, however Mortgagor is not
required to have an outside independent
director or member.
--------------------------------------------------------------------------------
Xxxxxx Expressway (59739) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
Lake Pleasant Pavilion (3402394) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
The Pointe at Bridgeport (3403431) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
Eastern Silverado Center (3405207) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
Cypress I (3405620) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
Simply Self Storage Portfolio II The original principal balance of the
(3406190) related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxxxx (3407789) The original principal balance of the
related Mortgage Loan is in excess of
$20,000,000, however the Mortgage File
does not contain a counsel's opinion
regarding non-consolidation of the
related mortgagor.
--------------------------------------------------------------------------------
Richmar Plaza (3405205) The original principal balance of the
related Mortgage Loan is in excess of
Sawgrass Xxxxx (3407000) $5,000,000; however Mortgagor previously
owned certain Mortgaged Property other
Summit Office Campus (3407712) than the Mortgaged Property.
--------------------------------------------------------------------------------
REPRESENTATION 31
No Advances.
------------
Arundel Xxxxx (3407568) The related Mortgaged Property is owned
by the owner of the related Mortgagor,
CVS - Federal Hill (3408238) and such Mortgagor executed the related
Mortgage Note and Loan Agreement. The
related Mortgage Loan is secured by an
Indemnity Guaranty and an Indemnity Deed
of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture
Filing, which documents have been
executed by the owner of the related
Mortgagor. This structure is known as an
Indemnity Deed of Trust, which is
specific to the State of Maryland.
--------------------------------------------------------------------------------
REPRESENTATION 32
Litigation or Other Proceedings.
--------------------------------
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) Search results included in the Mortgage
Loan file noted pending suits and
judgments against Sunrise Xxxxx (MLP)
Limited Partnership, Sawgrass Xxxxx
Phase II Limited Partnership, Sawgrass
Xxxxx Phase III Limited Partnership and
The Xxxxx Limited Partnership.
In addition, the related loan agreement
refers to an ongoing tax dispute which
is being contested by the related
Borrower.
--------------------------------------------------------------------------------
REPRESENTATION 41
Non-Recourse Exceptions.
------------------------
--------------------------------------------------------------------------------
Issaquah Highlands Town Center
(3404354)
0000 00xx Xxxxxx (3404906)
Salisbury Green Apartments (3405162)
Xxxxx Xxxxx Apartments (3405163)
Xxxxxxx Commons (3405433)
CVS Portfolio Texas (3405982)
The related borrower principal is not a
CVS Portfolio Louisiana (0000000) xxxxxxx person.
CVS - Gulfport (3406313)
000 Xxxxx Xxxxxx (3406741)
0000 Xxxxxxxxx Xxxxxx (3407789)
Gander Mountain Waukesha (3407919)
Bridgeport Shopping Center (3408565)
--------------------------------------------------------------------------------
Cypress I (3405620) The borrower principal of the sponsor is
not a natural person.
Harwin-Point West (3407545)
--------------------------------------------------------------------------------
Xxxxx Xxxxxx Building (3406564) Except with respect to an environmental
guaranty entered into by the related
Mortgagor, the Mortgage Loan is
non-recourse.
--------------------------------------------------------------------------------
Cincinnati MOB Portfolio (3406143) The Mortgage Loan is not recourse as to
misapplication of rents, insurance
Arundel Xxxxx (3407568) proceeds or condemnation awards.
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The Mortgage Loan is a fully recourse
loan with a payment guaranty made by an
Arundel Xxxxx (3407568) entity which is not a natural person.
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Shopping Center There is no borrower principal in
(3404603) connection with the related Mortgage
Loan.
Cincinnati MOB Portfolio (3406143)
Xxxxxxx Office (3406454)
Xxxxx Xxxxxx Building (3406564)
--------------------------------------------------------------------------------
REPRESENTATION 42
Separate Tax Parcels.
---------------------
--------------------------------------------------------------------------------
Xxxxxxx Center (3406454) Pursuant to Section 5.23 of the Mortgage
Loan Agreement, the Mortgagor is to use
its commercially reasonably efforts to
deliver to the mortgagee within 12
months of the closing date of the
related Mortgage Loan, evidence that the
Mortgaged Property is assessed for real
estate tax purposes as one or more
wholly independent tax lots. Until such
evidence is delivered, Mortgagor
acknowledges and agrees that in the
event that funds are required to be
deposited into the Tax and Insurance
Reserve Account, such funds will include
an amount sufficient to pay all "Taxes
and Other Charges" levied or imposed
against any adjoining land not
constituting a part of the Mortgaged
Property which are taxed together with
the Mortgaged Property.
The closing date of the Mortgage Loan
was June 28, 2007.
--------------------------------------------------------------------------------
REPRESENTATION 43
Financial Statements.
---------------------
--------------------------------------------------------------------------------
Some Loan Documents provide that annual financial statements will be audited by
an upon the request of the holder of the Mortgage Loan only following the
occurrence of an event of default under such Loan Documents or only if financial
statements are not delivered in a timely fashion.
--------------------------------------------------------------------------------
Northampton Village I (3406008) The original principal balance of the
related Mortgage Loan is in excess of
Sawgrass Xxxxx (3407000) $20,000,000; however audited financial
statements are not required.
Arundel Xxxxx (3407568)
--------------------------------------------------------------------------------
Green Oak Village Place (3403670) The original principal balance of the
related Mortgage Loan is in excess of
Cypress I (3405620) $20,000,000; however audited financial
statements are required only during an
event of default.
--------------------------------------------------------------------------------
REPRESENTATION 44
Fee/Leasehold Properties.
-------------------------
--------------------------------------------------------------------------------
Xxxxxx Xxxxx Shopping Center The related Ground Lease is subject and
(3404603) subordinate to the lien of a Deed of
Trust by landlord in favor of Umpqua
Bank recorded September 29, 2006.
Mortgagor subordinated the Ground Lease
to such Deed of Trust pursuant to
Amended and Restated Subordination,
Non-Disturbance and Attornment Agreement
made October 30, 2007.
--------------------------------------------------------------------------------
Holiday Inn San Antonio (3405632) For so long as the Mortgage Loan remains
outstanding and from and after any
transfer through the exercise of the
power of sale under the Mortgage or
foreclosure by the mortgagee, or similar
action or action in lieu of foreclosure,
the Mortgaged Property may be used only
for the operation of a motel/hotel and
restaurant facility comparable to a
"Holiday Inn" branded/flagged hotel.
The Ground Lease does not provide that a
notice of termination is ineffective
against the mortgagee under such
Mortgage Loan unless such termination is
at the election of the Mortgagor;
however, the related ground lessor is to
provide notice of any default to
mortgagee and mortgagee is permitted a
reasonable opportunity to cure any such
default.
The Ground Lease does not require that
the related ground lessor enter into a
new lease with the mortgagee under such
Mortgage Loan upon termination of such
Ground Lease for any reason.
The Ground Lease may be amended or
modified without the consent of the
mortgagee; however, the mortgagee will
not be bound by or subject to any
material or adverse amendment or
modification not consented to by
mortgagee.
--------------------------------------------------------------------------------
CVS Portfolio - Texas (3405982) The Mortgaged Property is to be used
solely for the purpose of the
construction and operation of a retail
drugstore/pharmacy and all related uses
typically found in drug stores operated
by the tenant (or its subtenant, Eckerd
Corporation).
The Ground Lease extends 20 years beyond
the Stated Maturity Date of the Mortgage
Loan; however, the Ground Lease does not
extend 10 years beyond the amortization
term of the Mortgage Loan.
--------------------------------------------------------------------------------
Cincinnati MOB Portfolio (3406143) Mortgagor must use the Mortgaged
Property only for the purposes of a
medical office building, including
medical offices, medical clinics,
rehabilitation services and related
services. All other uses will require
the related ground lessor's prior
written consent. Mortgagor many not make
any material change, addition or
alteration to the Mortgaged Property
without the consent of the related
ground lessor.
The consent of the related ground lessor
is required for assignments of each
related Ground Lease. The Mortgagor may
assign its interest to a mortgagee
without such consent, so long as the
assignee is not a "Competing Entity" (as
defined in each Ground Lease).
The related ground lessor and Mortgagor
will share in condemnation awards. The
portion of the total award attributable
to the value of the unimproved Mortgaged
Property must be allocated to the
related ground lessor, and that portion
of the total award attributable to the
value of the improvements must be
allocated between the related ground
lessor and Mortgagor after taking into
account the number of years remaining in
the term and the condition of the
improvements at the time of the taking.
The related ground lessor has the right
of approval of every tenant, subtenant
and occupancy of space in the
improvements located on the Mortgaged
Property. Mortgagor will not sublease
the Mortgaged Property without the prior
written consent of the related ground
lessor.
--------------------------------------------------------------------------------
Xxxxxxx Center (3406454) The related Ground Lease is silent with
respect to the requirement that the
consent of the related ground lessor is
required for assignments of the Lease by
the mortgagee. The related Ground Lease
provides that the Tenant must notify
ground lessor of any proposed or
contemplated transfer by Tenant.
The related Ground Lease does not
require that the mortgagee or a trustee
hold proceeds.
--------------------------------------------------------------------------------
Sawgrass Xxxxx (3407000) The Ground Lease covering "Phase V"
states that Landlord is entitled to
receive all of the insurance
proceeds/condemnation awards, but agrees
to make such proceeds/awards available
to the Borrower for the reconstruction
of the Mortgaged Property. Any excess
proceeds/awards are required to be
utilized to redeem the Series 2003 Bonds
(as defined in the related Loan
Documents).
The Ground Lease does not require the
related mortgagee's prior consent prior
to amendments or modifications thereto.
The related Ground Lease does not
confirm that such Ground Lease has
priority over any mortgage or other lien
upon the related fee interest.
The consent of the related ground lessor
is required for assignments of the
Ground Lease, unless it is a collateral
assignment or mortgage of the leasehold
estate, or unless the proposed assignee
is a purchaser of the entire shopping
center on the Mortgaged Property.
The "Phase V" Ground Lease extends 20
years beyond the Stated Maturity Date
for the Mortgage Loan; however, the
Ground Lease does not extend 10 years
beyond the amortization term of the
Mortgage Loan. The term of the Ground
Lease may be sooner terminated in the
event that the Series 2003 Bonds (as
defined in the related Loan Documents)
are retired prior to the natural
expiration of the term of such Ground
Lease, unless such retirement is done in
connection with the issuance of
refunding bonds, in which case the term
of the Ground Lease will terminate when
the refunding bonds are retired.
The Ground Lease does not require that
the related ground lessor enter into a
new lease with the mortgagee under such
Mortgage Loan upon termination of such
Ground Lease for any reason.
The Ground Lease relating to the "Phase
V" Ground Lease is silent regarding a
requirement for the related ground
lessor to enter into a new Ground Lease
with a mortgagee upon termination of
such Ground Lease as a result of any
default or as a result of a rejection of
such Ground Lease in a bankruptcy
proceeding involving the Mortgagor
unless the mortgagee under such Mortgage
Loan fails to cure a curable default of
the lessee under such Ground Lease
following notice thereof from the
related ground lessor.
The Ground Lease relating to the "Phase
V" Ground Lease states that Landlord is
entitled to receive all of the insurance
proceeds/condemnation awards, but agrees
to make such proceeds/awards available
to Tenant for the reconstruction of the
Premises. Any excess proceeds/awards
must be utilized to redeem the Series
2003 Bonds.
The Ground Lease relating to "Phase V"
requires the related ground lessor's
consent for subleases by the Mortgagor.
The related Ground Lease covering "Phase
V" of the Mortgaged Property does not
require mortgagee's consent to amend or
modify such Ground Lease.
--------------------------------------------------------------------------------
Summit Office Campus (3407712) The related Ground Lease extends less
than the greater of 10 years beyond the
amortization term and 20 years beyond
the Stated Maturity Date for the related
Mortgage Loan.
The Summit Office Campus Ground Lease
expires on April 1, 2018, however Tenant
has agreed to purchase the ground leased
property for the sum of $100 at the
expiration of the term following full
payment of the Taxable Industrial
Development Refunding Revenue Bonds
(Summit Technology Center Project),
Series 2007, in the maximum principal
amount of $51,590,988.52.
--------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxxxx (3407789) Any alteration which will cost more than
$250,000 or affect the structure element
or the exterior appearance of the
Mortgaged Property require the related
ground lessor's prior written consent.
--------------------------------------------------------------------------------
Xxxxxxx Plaza (3408309) Mortgagor's right to make changes and
alterations in, to, on or of the
Mortgaged Property is subject to the
related ground lessor's prior written
consent, which consent or approval will
not be unreasonably withheld or
delayed..
Mortgagor may assign the related Ground
Lease or sublease the Mortgaged Property
to an affiliate, without the related
ground lessor's consent. All other
assignments and subleases require the
related ground lessor's written
approval, which consent or approval will
not be unreasonably withheld or
delayed.. Mortgagor may place a mortgage
in favor of an affiliate or an
"Institutional Lender" (a bank, savings
and loan, savings bank, insurance
company, trust company, charitable
institution, college or other
institution of learning, pension, profit
sharing or retirement fund or trust,
governmental or quasi-governmental
entity or any other organization similar
to any of the foregoing, which makes
loans on real estate) on its leasehold
estate without the related ground
lessor's consent. The consent of the
ground lessor has been obtained for the
assignment of the ground lease to the
Trust.
The related Ground Lease extends less
than the greater of 10 years beyond the
amortization term and 20 years beyond
the Stated Maturity Date for the related
Mortgage Loan. The Ground Lease expires
on May 7, 2034.
--------------------------------------------------------------------------------
REPRESENTATION 45
Fee Simple Interest.
--------------------
--------------------------------------------------------------------------------
Arundel Xxxxx (3407568) The related Mortgaged Property is owned
by the owner of the related Mortgagor,
CVS - Federal Hill (3408238) and such Mortgagor executed the related
Mortgage Note and Loan Agreement. The
related Mortgage Loan is secured by an
Indemnity Guaranty and an Indemnity Deed
of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture
Filing, which documents have been
executed by the owner of the related
Mortgagor. This structure is known as an
Indemnity Deed of Trust, which is
specific to the State of Maryland.
--------------------------------------------------------------------------------
BACM 2007-5 SECURITIZATION
--------------------------
SCHEDULE IIA
------------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE BRIDGER MORTGAGE LOANS
------------------------------------------
Schedule IIA (6) Assignment of Leases and Rents
-----------------------------------------------
To the extent that a Mortgagor leases all or part of the Mortgaged
Property to a master lessee, which master lessee enters into leases with
tenants of such Mortgaged Property, such master lessee owns an interest in
any payments due under such leases.
With respect to the Budget Storage Portfolio I Mortgage Loan (Loan No.
24130) and the Budget Storage Portfolio II Mortgage Loan (Loan No. 25129),
the borrowers under the related promissory notes (the "Borrowers") do not
own the Mortgaged Properties that secure the related Mortgage Loans.
Instead, a general partnership (which is an affiliate of the Borrowers and
whose only partners are the Borrowers) owns the Mortgaged Properties that
secure those two Mortgage Loans and, accordingly, has an interest in
payments due under the related leases.
Schedule IIA (14) Insurance
---------------------------
With respect to each Bridger Mortgage Loan, the related Mortgage requires
the Mortgagor to maintain such insurance as the mortgagee may require, and
thus permits the mortgagee to require the maintenance of the insurance
described in this section.
With respect to the 1200 Ashland Office Mortgage Loan (Loan No. 22594),
the Mortgaged Property is part of a condominium and the condominium
association insures against damage to, and maintains general liability
insurance covering, the Mortgaged Property.
Schedule IIA (17) Additional Collateral
---------------------------------------
The Loan Documents with respect to the Lockaway Storage - Sunnyvale
Mortgage Loan (Loan No. 19289) permit the related Mortgagor, at any time
more than thirty-six months after the securitization of such Mortgage
Loan, to incur subordinate debt secured by the related Mortgaged Property
if the mortgagee approves such subordinate debt in its discretion and the
Mortgagor satisfies certain financial criteria and other requirements.
Schedule IIA (19) Environmental Conditions
------------------------------------------
With respect to the Budget Storage Portfolio I Mortgage Loan (Loan No.
24130), a Phase I environmental site assessment conducted in August 2005
identified evidence that two underground storage tanks ("USTs") were on
the Mortgaged Property. A Phase II environmental site assessment completed
by Xxxxx Xxxxx & Associates ("BIA") confirmed the presence of the two USTs
and recommended the removal of the USTs, which occurred in October 2006.
Along with the removal of the USTs, three groundwater monitoring xxxxx
were installed and some contaminated soil was removed. Full soil
remediation was not feasible due to the proximity of the contaminated soil
to improvements situated on the Mortgaged Property. A letter from BIA
dated June 4, 2007 stated that an additional subsurface investigation
identified soil contamination above the Pennsylvania Department of
Environmental Protection's ("PDEP") minimum guidelines and that the soil
contamination is delineated horizontally and vertically, but it further
stated that the source of the soil contamination has been removed. BIA
submitted a final report requesting that PDEP provide "Relief of
Liability" (the "Relief of Liability Request") eliminating the need for
further soil remediation or monitoring. PDEP determined in connection with
its review of the Relief of Liability Request that additional groundwater
monitoring was required because the data from the groundwater monitoring
xxxxx identified groundwater contamination above PDEP's guidelines. BIA
and the Mortgagor have submitted to PDEP a groundwater monitoring program
that will sample the groundwater four to eight times on a quarterly basis.
An environmental reserve of $125,000 (representing 125% of the
environmental consultant's estimated maximum cost of any monitoring and
potential future remediation) was established at the closing of the
Mortgage Loan, which reserve will be disbursed upon the evidence that the
groundwater contamination levels are below PDEP's minimum guidelines and
the receipt of a no further action letter.
With respect to the Broadway Plaza Retail Center Mortgage Loan (Loan No.
21261):
(i) the related Environmental Report is not dated within the twelve
months prior to the Closing Date; and
(ii) an environmental site assessment conducted in July 2006
identified perchloroethylene concentrations above the levels of the Idaho
Department of Environmental Quality's water quality standard and indicated
that additional investigation was required. An ongoing quarterly
groundwater monitoring program was instituted in 2004. An environmental
reserve of $400,000 was established at the closing of the Mortgage Loan,
and up to one-eleventh of the reserve will be disbursed once a calendar
year to reimburse the Mortgagor for the quarterly groundwater monitoring
program. But if the amount in the reserve is less than $78,500, then on
the following payment date the Mortgagor will be required to deposit the
amount the mortgagee directs to restore the balance of the reserve to
$78,500.
With respect to the Goshen Village Shoppes Mortgage Loan (Loan No. 24017),
the related loan assumption agreements provide that the added
tenant-in-common Mortgagors (the "New TICs," which term does not include
the respective original Mortgagor) do not have any personal liability
(whether under any recourse carve-outs or exceptions to non-recourse
provisions or otherwise) for environmental matters.
Schedule IIA (21) Bankruptcy
----------------------------
To the extent any Mortgagor leases all or part of the Mortgaged Property
to tenants, the Seller makes no representation regarding the bankruptcy or
insolvency of any tenant at the Mortgaged Property.
Schedule IIA (22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest
-----------------------------------------------------------------------
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first two years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
00000 Xxxxxxxxxxx Xxxxxxx Xxxx
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first three years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
21430 Budget Storage Portfolio I
25129 Budget Storage Portfolio II
21902 Monroe Medical Office
21632 University Gateway North
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first five years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
23796 Stone Canyon
00000 Xxxxxxxx Xxxxx Retail Center
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the Mortgage Loan's entire term:
Loan No. Mortgage Loan
-------- -------------
24017 Goshen Village Shoppes
Schedule IIA (23) Transfers and Subordinate Debt
------------------------------------------------
With respect to the Goshen Village Shoppes Mortgage Loan (Loan No. 24017):
(i) the Loan Documents permitted the Mortgagor to transfer
tenant-in-common interests in the Mortgaged Property provided that each
purchaser of a tenant-in-common interest satisfied the mortgagee's
single-purpose entity requirements and certain other conditions were
satisfied, and such transfers were all completed within 90 days after the
origination date of the Mortgage Loan; and
(ii) the related tenant-in-common agreements provide that if
tenants-in-common owning at least 70% of the interests in the Mortgaged
Property (each, an "Approving TIC") vote to (a) approve a sale or
refinancing of the Mortgaged Property, or (b) take action to prevent or
cure an event of default under the Loan Documents, then each Approving TIC
will have the right to purchase the interest of the tenants-in-common that
voted against such decision. The purchase price for the options described
above is determined under the tenant-in-common agreements, which generally
require the TICs to obtain an independent appraisal for such
determination.
Schedule IIA (24) Waivers and Modifications
-------------------------------------------
With respect to the Xxxxxxx Inn - DFW Mortgage Loan (Loan No. 24785), the
Loan Documents were amended to consent to and acknowledge the Mortgagor's
existing unsecured subordinate debt.
Schedule IIA (28) Local Law Compliance; Non-Conforming Use or Improvements
--------------------------------------------------------------------------
With respect to the Stone Canyon Mortgage Loan (Loan No. 23796), the
related Mortgagor is not in possession of all of the certificates of
occupancy but a reserve of $177,900 was established at the closing of the
Mortgage Loan, which reserve will be disbursed upon the satisfaction of
certain conditions, including the Mortgagor providing the mortgagee with
copies of the required certificates of occupancy.
With respect to the University Gateway North Mortgage Loan (Loan No.
21632), the related Mortgagor is not in possession of all of the
certificates of occupancy but a reserve of $25,000 was established at the
closing of the Mortgage Loan, which reserve will be disbursed upon the
satisfaction of certain conditions, including the Mortgagor providing the
mortgagee with copies of the required certificates of occupancy.
With respect to the Big Bend Office Mortgage Loan (Loan No. 23268), the
related Mortgagor is not in possession of the certificate of occupancy
(the agency responsible for issuing certificates of occupancy was not in
existence at the time the improvements on the related Mortgaged Property
were constructed).
Schedule IIA (30) Single-Purpose Entity
---------------------------------------
With respect to the Budget Storage Portfolio I Mortgage Loan (Loan No.
24130) and the Budget Storage Portfolio II Mortgage Loan (Loan No. 25129),
the borrowers under the related promissory notes (the "Borrowers") do not
own the Mortgaged Properties that secure the related Mortgage Loans.
Instead, a general partnership (which is an affiliate of the Borrowers and
whose only partners are the Borrowers) owns the Mortgaged Properties that
secure those two Mortgage Loans. The two Mortgage Loans are not, however,
cross-collateralized, and separate Mortgaged Properties (although all
owned by the same general partnership) secure the two separate Mortgage
Loans.
With respect to the Goshen Village Shoppes Mortgage Loan (Loan No. 24017)
the Loan Documents permitted the Mortgagor to transfer tenant-in-common
interests in the Mortgaged Property provided that each purchaser of a
tenant-in-common interest satisfied the mortgagee's single-purpose entity
requirements and certain other conditions were satisfied, and such
transfers were all completed within 90 days after the origination date of
the Mortgage Loan. The Mortgagor now consists of 22 tenants-in-common.
With respect to the Circleville Medical Mall Mortgage Loan (Loan No.
19364), the Mortgagor consists of 13 limited liability companies (each, a
single-purpose entity) that own the Mortgaged Property as
tenants-in-common.
Schedule IIA (31) No Advances
-----------------------------
With respect to the Goshen Village Shoppes Mortgage Loan (Loan No. 24017),
in connection with the transaction documents under which the Mortgagor
purchased the related Mortgaged Property, the mortgagee receives a monthly
payment from an escrow fund owned by the Mortgaged Property seller.
Schedule IIA (37) Escrow Deposits
---------------------------------
It is anticipated that the primary servicers of the Bridger Mortgage Loans
will retain possession of the escrows, deposits and payments on behalf of
the Depositor, rather than conveying possession thereof to the Depositor
on the Closing Date.
Schedule IIA (41) Non-Recourse Exceptions
-----------------------------------------
Each of the following Mortgage Loans has a non-recourse carve-out for
"fraud or intentional misrepresentation" rather than "fraud or material
misrepresentation":
Loan No. Mortgage Loan
-------- -------------
21902 Xxxxxx Xxxxxxx Xxxxxx
00000 Xxxxxx Xxxxxxx Shoppes
19289 Lockaway Storage - Sunnyvale
23796 Stone Canyon
18885 Pavilion Medical Center - Carolina Beach
00000 Xxxxxxxx Xxxxx Retail Center
24152 Best Xxxxxxx - Xxxxxxxxxx
00000 XxXxxxxxxxx Xxxxxxx Xxxxxxxx
00000 PostJones Office
22594 1200 Ashland Office
23213 Kanis Business Park
25133 Horsepen Retail Center
23368 Big Bend Office
00000 Xxxxxxxxxxx Xxxxxxx Xxxx
With respect to the Goshen Village Shoppes Mortgage Loan (Loan No. 24107),
the related loan assumption agreements provide that the added
tenant-in-common Mortgagors (the "New TICs," which term does not include
the respective original Mortgagor) do not have any personal liability
(whether under any recourse carve-outs or exceptions to non-recourse
provisions or otherwise) for environmental matters.
With respect to the Lockaway Storage - Sunnyvale Mortgage Loan (Loan No.
19289), a general partnership rather than a natural person is the
guarantor.
Schedule IIA (42) Separate Tax Parcels
--------------------------------------
With respect to the 1200 Ashland Mortgage Loan (Loan No. 22594), the
related Mortgaged Property is part of a condominium and does not
constitute one or more separate tax lots. An application for the creation
of separate tax lots has been submitted but will not be effective for the
next tax year. Until a separate tax lot is created for the Mortgaged
Property, the condominium association (the "Association") will be
responsible for the taxes and each of the condominium unit owners will be
required to reimburse the Association for its proportionate share.
Schedule IIA (43) Financial Statements
--------------------------------------
With respect to the following Bridger Mortgage Loans, the related Loan
Documents require the delivery of at least quarterly operating statements
as well as an annual balance sheet of the related Mortgagor (but such Loan
Documents do not specifically require (i) the delivery of an annual
operating statement or (ii) that the annual balance sheet include a
statement of changes in financial position):
Loan No. Mortgage Loan
-------- -------------
21902 Xxxxxx Xxxxxxx Xxxxxx
00000 Xxxxxx Xxxxxxx Shoppes
23796 Stone Canyon
18885 Pavilion Medical Center - Carolina Beach
00000 Xxxxxxxx Xxxxx Retail Center
21114 McMinnville Medical Building
23549 PostJones Office
22594 1200 Ashland Office
23213 Kanis Business Park
25133 Horsepen Retail Center
23368 Big Bend Office
00000 Xxxxxxxxxxx Xxxxxxx Xxxx
Schedule IIA (44) Fee/Leasehold Properties
------------------------------------------
With respect to the Broadway Plaza Retail Center Mortgage Loan (Loan No.
21261):
(i) the Ground Lease requires the lessor to give notice of any
lessee default to the mortgagee but does not provide that such notice is
not effective against the mortgagee when it is not so delivered to the
mortgagee; and
(ii) the current term of the Ground Lease does not extend for a
period greater than 10 years beyond the amortization term for the Mortgage
Loan but does extend for a period greater than 20 years beyond the Stated
Maturity Date for the Mortgage Loan.
Schedule IIA (45) Fee Simple Interest
-------------------------------------
With respect to the Budget Storage Portfolio I Mortgage Loan (Loan No.
24130) and the Budget Storage Portfolio II Mortgage Loan (Loan No. 25129),
the borrowers under the related promissory notes (the "Borrowers") do not
own the Mortgaged Properties that secure the related Mortgage Loans.
Instead, the two Borrowers (each a limited liability company) are the
partners of a general partnership that owns the Mortgaged Properties that
secure those two Mortgage Loans.
Bridger Mortgage Loans
----------------------
The following Mortgage Loans are the Bridger Mortgage Loans:
Loan No. Mortgage Loan
-------- -------------
24130 Budget Storage Portfolio I
25129 Budget Storage Portfolio II
21902 Monroe Medical Office
24785 Xxxxxxx Inn - XXX
00000 Xxxxxx Xxxxxxx Shoppes
19289 Lockaway Storage - Sunnyvale
23796 Stone Canyon
24550 Holiday Inn Express - Humble
23368 Big Bend Xxxxxx
00000 Xxxxxxxx Xxxxxxx Xxxxxx - Xxxxxxxx Xxxxx
00000 Xxxxxxxx Xxxxx Retail Center
24152 Best Xxxxxxx - Xxxxxxxxxx
00000 University Gateway North
19364 Circleville Medical Mall
21114 McMinnville Medical Building
23549 PostJones Xxxxxx
00000 Xxxxx Xxx Xxxx
00000 1200 Ashland Office
25133 Horsepen Retail Center
23213 Kanis Business Park