EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of July 1, 2007, among Hypo Public Finance USA, Inc., as
seller (the "Seller" "HPF"), Hypo Real Estate Capital Corporation ("HRECC") and
Banc of America Commercial Mortgage Inc., as purchaser (the "Purchaser" or
"BACM").
HRECC has originated the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule"). Prior to the date hereof, HRECC has, for good
and valuable consideration, sold, conveyed and assigned to HPF, without
recourse, all right, title and interest in and to the Mortgage Loans pursuant to
that certain bills of sale annexed hereto as Exhibit A (collectively the "Bills
of Sale"). HPF now 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 Mortgage Loans identified on the Mortgage Loan
Schedule, except that the Seller will transfer the related master servicing
rights (the "Servicing Rights") separately pursuant to the Master Servicing
Rights Purchase Agreement, dated as of July 1, 2007, among BACM, HPF and Bank of
America, National Association, in its capacity as Master Servicer (as defined
below).
The Purchaser intends to transfer or cause the transfer of:(i) the
Mortgage Loans; (ii) certain mortgage loans transferred by Bank of America,
National Association ("Bank of America") to the Purchaser pursuant to a mortgage
loan purchase and sale agreement, dated as of the date hereof between Bank of
America and the Purchaser; (iii) certain mortgage loans transferred by Eurohypo
A.G., New York Branch ("Eurohypo") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between Eurohypo and
the Purchaser and (iv) certain mortgage loans transferred by SunTrust Bank
("SunTrust") to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between SunTrust and the Purchaser, to a
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement (as
defined below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch, Inc. and/or ▇▇▇▇▇'▇ Investors Service, Inc.
and/or Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. (collectively, the "Rating Agencies"). Certain classes of the
Certificates (the "Offered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), Midland Loan Services, Inc., as special
servicer (the "Special Servicer"), and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (in
such capacity, the "Trustee") and as REMIC administrator. Capitalized terms used
but not otherwise defined herein have the respective meanings assigned to them
in the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Commerzbank Capital Markets Corp. ("Commerz"), Hypo
Capital Markets, Inc. ("Hypo Capital"), SunTrust Capital Markets, Inc.
("SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), Citigroup Global Markets Inc. ("Citigroup") and
Credit Suisse Securities (USA) LLC ("Credit Suisse" and, collectively with BAS,
Commerz, Hypo Capital, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Citigroup, the
"Underwriters") pursuant to an underwriting agreement, dated as of July 18, 2007
(the "Underwriting Agreement"). BACM intends to place the remaining Classes of
Certificates (the "Non-Offered Certificates") through BAS, as placement agent
(in such capacity, the "Placement Agent"), pursuant to a private placement
agreement, dated as of July 18, 2007 (the "Private Placement Agency Agreement"),
among BACM and BAS. The Offered Certificates are more fully described in the
prospectus dated June 29, 2007 (the "Base Prospectus"), and the supplement to
the Base Prospectus dated June 29, 2007 (the "Prospectus Supplement"; and,
together with the Base Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The privately offered Non-Offered
Certificates are more fully described in a private placement memorandum, dated
July 18, 2007 (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
HRECC, pursuant to its agreement to provide additional consideration
to HPF for its sale of the Mortgage Loans to HPF under the Bills of Sale, will
indemnify the Underwriters, the Placement Agent and certain related parties with
respect to certain disclosure regarding the Mortgage Loans and contained in the
Prospectus, the Memorandum and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated as of July 18, 2007 (the "Indemnification Agreement"), among
HRECC, the Purchaser, the Underwriters and the Placement Agent.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase and Sell.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans after the Cut-off Date
and takes into account credits, sales concessions and such other adjustments,
which amount shall be payable on or about July 26, 2007 in immediately available
funds. The Purchaser shall be entitled to all interest accrued on the Mortgage
Loans on and after the Cut-off Date and all principal payments received on the
Mortgage Loans after the Cut-off Date except for principal and interest payments
due and payable on the Mortgage Loans on or before the Cut-off Date, which shall
belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with HPF'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 HRECC and
the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) Each of the Seller and HRECC are corporations, duly authorized,
validly existing and in good standing under the laws of the State of
Delaware.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) HRECC, on behalf of 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. HRECC further represents and warrants to the Purchaser that the
Mortgage Loans have been sold by HRECC to the Seller for fair market value
pursuant to the terms of the Bills of Sale, and that the related Mortgage Notes
have been endorsed and delivered to the Seller together with requisite
assignments of the related Mortgage Loan Documents.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify HRECC thereof in writing and
request that HRECC correct or cure such Material Breach or Material Document
Defect. Within 90 days of the earlier of discovery or receipt of written notice
by HRECC that there has been a Material Breach or a Material Document Defect
(such 90-day period, the "Initial Resolution Period"), HRECC 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 HRECC 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 HRECC
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 HRECC 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 HRECC 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. Neither HRECC nor the Seller shall
have any obligation to monitor the Mortgage Loans regarding the existence of a
Material Breach or Material Document Defect, but if HRECC 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, HRECC shall have an additional 90 days to cure such
Material Document Defect or Material Breach, provided that HRECC has commenced
and is diligently proceeding with the cure of such Material Document Defect or
Material Breach and such failure to cure is solely the result of a delay in the
return of documents from the local filing or recording authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Mortgage Loan or affected Mortgaged
Property or, in the case of a Cross-Collateralized Mortgage Loan, forbear from
enforcing any remedies against the other's Primary Collateral (as defined
below), but each is permitted to exercise remedies against the Primary
Collateral securing its respective affected Cross-Collateralized Mortgage Loans
or Mortgaged Properties, including, with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Cross-Collateralized Mortgage Loans or
Mortgaged Properties held by such party, then both parties shall forbear from
exercising such remedies until the related Mortgage Loan documents can be
modified to remove the threat of impairment as a result of the exercise of
remedies. "Primary Collateral" shall mean the Mortgaged Property directly
securing a Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
For the avoidance of doubt, the Seller is not selling any
Cross-Collateralized Mortgage Loans to the Purchaser pursuant to this Agreement
and therefore the preceding three paragraphs of the Section 4(c) shall not
apply.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), HRECC 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, HRECC 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 HRECC 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. Notwithstanding
anything herein to the foregoing, it is further understood and agreed that the
Seller shall not make, nor be deemed to have made, any of the representations
and warranties contained in Schedule II, nor shall the Seller have or be deemed
to have any of the obligations to cure a Material Breach or a Material Document
Defect or repurchase or replace any Defective Mortgage Loans contained in this
Section 4(c), which shall be the sole obligations of HRECC.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by HRECC 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) HRECC, on behalf of 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) HRECC, on behalf of 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 or HRECC 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, HRECC, on behalf of 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 HRECC, 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) HRECC, on behalf of 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) HRECC, on behalf of 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, HRECC shall provide the Purchaser (or with
respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by HRECC.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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, HRECC and the Seller, shall be duly executed
and delivered by all signatories as required pursuant to the respective
terms thereof;
(iii) The Seller (or HRECC, on behalf of 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 and HRECC 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) HRECC (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,
HRECC 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 and HRECC, 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 HRECC; and
(d) Certificate of good standing regarding the Seller and HRECC from
the Secretary of the State of Delaware, dated not earlier than 30 days prior to
the Closing Date; and
(e) A certificate of HRECC, executed by an executive officer or
authorized signatory of HRECC 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 HRECC 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) HRECC 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 and HRECC, 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., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇ (with copies to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., Assistant General Counsel, at Bank of America Corporate Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, 30th Floor, NC1-002-29-01, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28202), or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Hypo Public Finance USA, Inc., Attention: ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and to Hypo Real Estate Capital
Corporation, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a copy to Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Attention:
▇▇▇▇ ▇▇▇▇▇, Esq., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 EACH OF THE SELLER AND HRECC
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, HRECC 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 and HRECC under this
Agreement shall not be assigned by the Seller and HRECC without the prior
written consent of the Purchaser, except that any person into which the Seller
and HRECC may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Seller and
HRECC is a party, or any person succeeding to all or substantially all of the
business of the Seller and HRECC, 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 either the Seller or HRECC to the Purchaser to secure a debt or other
obligation of either the Seller or HRECC, 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, HRECC 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.
For the avoidance of doubt, the Seller is not selling any
Cross-Collateralized Mortgage Loans to the Purchaser pursuant to this Agreement
and therefore the preceding paragraph of this Section 19 shall not apply.
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 or HRECC
without the consent of the Seller or HRECC, as applicable.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, HRECC, 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.
HYPO PUBLIC FINANCE USA, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
HYPO REAL ESTATE CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
BILLS OF SALE
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Hypo Real Estate Capital Corporation, a Delaware
corporation
Purchaser: Hypo Public Finance USA, Inc., a Delaware
corporation
2. Date of Sale. As of February 14, 2007
3. Sale. For value received, the Seller hereby conveys and assigns
to the Purchaser, without recourse, all right, title and interest in and to that
certain mortgage loan identified on Schedule A hereto (the "Mortgage Loan") and
all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loan, including the related mortgage note, mortgage, security
agreement, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the date hereof, all
substitute or replacement mortgage loans and all distributions with
respect thereto, and the documents set forth on Schedule B hereto;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other individuals or entities with respect to, all or any part of
the collateral described in clause (a) above (including any accrued
discount realized on liquidation of any investment purchased at a
discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. $[_______].
4. Additional Consideration. If the Mortgage Loan is sold to a
depositor in connection with a commercial mortgage securitization (a
"Securitization"), the Seller hereby agrees to (i) make any representations and
warranties and be subject to any repurchase obligations for a breach of such
representations and warranties set forth in the mortgage loan purchase agreement
related to the Securitization (the "Purchase Agreement") and (ii) provide any
indemnification or contribution for securities laws liabilities with respect to
the Mortgage Loan and the Purchaser's capacity as seller or sponsor with respect
to such Securitization; provided, that (i) such representations and warranties,
indemnities and contributions are market standard with respect to similar
commercial mortgage securitizations as of the closing date of the Securitization
and (ii) Seller shall not be required to make a representation or warranty if it
determines, after making due inquiry, that such representation or warranty has
become untrue subsequent to the date hereof, and Seller shall be permitted to
take any appropriate exception.
5. Governing Law. This ▇▇▇▇ of Sale shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this ▇▇▇▇
of Sale to be duly executed and delivered on the date and year first written
above.
SELLER: HYPO REAL ESTATE CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
PURCHASER: HYPO PUBLIC FINANCE USA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
Mortgage Loan
The Loan, as such term is defined in that certain Loan and Security Agreement,
dated as of February 6, 2007, between WSRH Washington, L.L.C., a Delaware
limited liability company, as borrower, and HRECC, as lender, in the original
principal balance of $200,000,000, secured by the property known as the
"Mayflower Renaissance Hotel."
SCHEDULE B
Mortgage Files
o The original executed promissory note (the "Note") evidencing the
indebtedness of an obligor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement
of such note and an allonge endorsed by Seller in the name of Purchaser;
o The mortgage, deed of trust, deed to secure debt or similar instrument
that secures the Note and creates a lien on the fee or leasehold interest
in the underlying property secured by the Note (the "Mortgage"), together
with originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated thereon;
o The related assignment of leases thereunder, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the underlying property secured by the Note is
located to reflect the assignment of leases (if such item is a document
separate from the Mortgage) (an "Assignment of Leases"), together with
intervening assignments thereof, in each case (unless the particular item
has not been returned from the applicable recording office) with evidence
of recording indicated thereon;
o The executed assignment from Seller to Purchaser, in recordable form
(except for recording information not yet available if the instrument
being assigned has not been returned from the applicable recording
office), of (A) the Mortgage and (B) any related Assignment of Leases (if
such item is a document separate from the Mortgage);
o An original or copy of the assignment from Seller to Purchaser of all
unrecorded documents relating to the Mortgage Loan;
o The original or a copy of the policy or certificate of the lender's title
insurance issued in connection with such Mortgage Loan (or, if such policy
has not been issued, a "marked up" pro forma title policy marked as
binding and countersigned by the title insurer or its authorized agent, or
an irrevocable, binding commitment to issue such title insurance policy);
o The ground lease relating to such Mortgage Loan, if any;
o The related loan agreement, if any;
o Any related guaranty of payment;
o The lock box agreement or cash management agreement relating to such
Mortgage Loan, if any;
o Copies of UCC financing statements (together with all assignments thereof)
filed in connection with a Mortgage Loan
o An original or copy of the environmental indemnity from the related
Mortgagor, if any;
o An original or copy of the related security agreement (if such item is a
document separate from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof;
o Copies of third-party management agreements, if any;
o Any original of any letter of credit constituting additional collateral
for such Mortgage Loan;
o The original of any environmental insurance policy or, if the original is
held by the related borrower, a copy thereof;
o A copy of any affidavit and indemnification agreement in favor of the
lender;
o A copy of any related co lender agreement or participation agreement; and
o In the case of any Mortgage Loan as to which there exists a related
mezzanine loan, the original or a copy of the related intercreditor
agreement
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Hypo Real Estate Capital Corporation, a Delaware
corporation
Purchaser: Hypo Public Finance USA, Inc., a Delaware
corporation
2. Date of Sale. As of February 14, 2007
3. Sale. For value received, the Seller hereby conveys and assigns
to the Purchaser, without recourse, all right, title and interest in and to that
certain mortgage loan identified on Schedule A hereto (the "Mortgage Loan") and
all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loan, including the related mortgage note, mortgage, security
agreement, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the date hereof, all
substitute or replacement mortgage loans and all distributions with
respect thereto, and the documents set forth on Schedule B hereto;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other individuals or entities with respect to, all or any part of
the collateral described in clause (a) above (including any accrued
discount realized on liquidation of any investment purchased at a
discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. $[______].
4. Additional Consideration. If the Mortgage Loan is sold to a
depositor in connection with a commercial mortgage securitization (a
"Securitization"), the Seller hereby agrees to (i) make any representations and
warranties and be subject to any repurchase obligations for a breach of such
representations and warranties set forth in the mortgage loan purchase agreement
related to the Securitization (the "Purchase Agreement") and (ii) provide any
indemnification or contribution for securities laws liabilities with respect to
the Mortgage Loan and the Purchaser's capacity as seller or sponsor with respect
to such Securitization; provided, that (i) such representations and warranties,
indemnities and contributions are market standard with respect to similar
commercial mortgage securitizations as of the closing date of the Securitization
and (ii) Seller shall not be required to make a representation or warranty if it
determines, after making due inquiry, that such representation or warranty has
become untrue subsequent to the date hereof, and Seller shall be permitted to
take any appropriate exception.
5. Governing Law. This ▇▇▇▇ of Sale shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this ▇▇▇▇
of Sale to be duly executed and delivered on the date and year first written
above.
SELLER: HYPO REAL ESTATE CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
PURCHASER: HYPO PUBLIC FINANCE USA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
Mortgage Loan
The Loan, as such term is defined in that certain Loan and Security Agreement,
dated as of January 25, 2007, among Park at Landmark Limited Partnership, a
Virginia limited partnership, ACG Cambridge Crossing Limited Partnership, a
Maryland limited partnership and Delaware Greenbelt Sub, LLC, Delaware
Greenbelt, LLC, Laurel Road Apartments Investors, LLC, Cypress Creek Investment,
LLC, ▇▇▇▇▇▇ Walk Portfolio, LLC and Lenox Court Portfolio, LLC, each a Delaware
limited liability company, collectively as borrower, and HRECC, as lender, in
the original principal balance of $275,000,000, secured by the property known as
the "▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio."
SCHEDULE B
Mortgage Files
o The original executed promissory note (the "Note") evidencing the
indebtedness of an obligor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement
of such note and an allonge endorsed by Seller in the name of Purchaser;
o The mortgage, deed of trust, deed to secure debt or similar instrument
that secures the Note and creates a lien on the fee or leasehold interest
in the underlying property secured by the Note (the "Mortgage"), together
with originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated thereon;
o The related assignment of leases thereunder, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the underlying property secured by the Note is
located to reflect the assignment of leases (if such item is a document
separate from the Mortgage) (an "Assignment of Leases"), together with
intervening assignments thereof, in each case (unless the particular item
has not been returned from the applicable recording office) with evidence
of recording indicated thereon;
o The executed assignment from Seller to Purchaser, in recordable form
(except for recording information not yet available if the instrument
being assigned has not been returned from the applicable recording
office), of (A) the Mortgage and (B) any related Assignment of Leases (if
such item is a document separate from the Mortgage);
o An original or copy of the assignment from Seller to Purchaser of all
unrecorded documents relating to the Mortgage Loan;
o The original or a copy of the policy or certificate of the lender's title
insurance issued in connection with such Mortgage Loan (or, if such policy
has not been issued, a "marked up" pro forma title policy marked as
binding and countersigned by the title insurer or its authorized agent, or
an irrevocable, binding commitment to issue such title insurance policy);
o The ground lease relating to such Mortgage Loan, if any;
o The related loan agreement, if any;
o Any related guaranty of payment;
o The lock box agreement or cash management agreement relating to such
Mortgage Loan, if any;
o Copies of UCC financing statements (together with all assignments thereof)
filed in connection with a Mortgage Loan
o An original or copy of the environmental indemnity from the related
Mortgagor, if any;
o An original or copy of the related security agreement (if such item is a
document separate from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof;
o Copies of third-party management agreements, if any;
o Any original of any letter of credit constituting additional collateral
for such Mortgage Loan;
o The original of any environmental insurance policy or, if the original is
held by the related borrower, a copy thereof;
o A copy of any affidavit and indemnification agreement in favor of the
lender;
o A copy of any related co lender agreement or participation agreement; and
o In the case of any Mortgage Loan as to which there exists a related
mezzanine loan, the original or a copy of the related intercreditor
agreement
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Hypo Real Estate Capital Corporation, a Delaware
corporation
Purchaser: Hypo Public Finance USA, Inc., a Delaware
corporation
2. Date of Sale. As of June 5, 2007
3. Sale. For value received, the Seller hereby conveys and assigns
to the Purchaser, without recourse, all right, title and interest in and to that
certain mortgage loan identified on Schedule A hereto (the "Mortgage Loan") and
all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the following property: the
Mortgage Loan, including the related mortgage note, mortgage, security
agreement, and title, hazard and other insurance policies, all
distributions with respect thereto payable after the date hereof, all
substitute or replacement mortgage loans and all distributions with
respect thereto, and the documents set forth on Schedule B hereto;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other individuals or entities with respect to, all or any part of
the collateral described in clause (a) above (including any accrued
discount realized on liquidation of any investment purchased at a
discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. $[________].
4. Additional Consideration. If the Mortgage Loan is sold to a
depositor in connection with a commercial mortgage securitization (a
"Securitization"), the Seller hereby agrees to (i) make any representations and
warranties and be subject to any repurchase obligations for a breach of such
representations and warranties set forth in the mortgage loan purchase agreement
related to the Securitization (the "Purchase Agreement") and (ii) provide any
indemnification or contribution for securities laws liabilities with respect to
the Mortgage Loan and the Purchaser's capacity as seller or sponsor with respect
to such Securitization; provided, that (i) such representations and warranties,
indemnities and contributions are market standard with respect to similar
commercial mortgage securitizations as of the closing date of the Securitization
and (ii) Seller shall not be required to make a representation or warranty if it
determines, after making due inquiry, that such representation or warranty has
become untrue subsequent to the date hereof, and Seller shall be permitted to
take any appropriate exception.
5. Governing Law. This ▇▇▇▇ of Sale shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, each of the parties hereto has caused this ▇▇▇▇
of Sale to be duly executed and delivered on the date and year first written
above.
SELLER: HYPO REAL ESTATE CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
PURCHASER: HYPO PUBLIC FINANCE USA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE A
Mortgage Loan
The Loan, as such term is defined in that certain Loan and Security Agreement,
dated as of June 5, 2007, between Metropolis I PERM, LLC, a Delaware limited
liability company, as borrower, and HRECC, as lender, in the original principal
balance of $95,000,000, secured by the property known as the "Metropolis
Shopping Center."
SCHEDULE B
Mortgage Files
o The original executed promissory note (the "Note") evidencing the
indebtedness of an obligor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement
of such note and an allonge endorsed by Seller in the name of Purchaser;
o The mortgage, deed of trust, deed to secure debt or similar instrument
that secures the Note and creates a lien on the fee or leasehold interest
in the underlying property secured by the Note (the "Mortgage"), together
with originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated thereon;
o The related assignment of leases thereunder, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the underlying property secured by the Note is
located to reflect the assignment of leases (if such item is a document
separate from the Mortgage) (an "Assignment of Leases"), together with
intervening assignments thereof, in each case (unless the particular item
has not been returned from the applicable recording office) with evidence
of recording indicated thereon;
o The executed assignment from Seller to Purchaser, in recordable form
(except for recording information not yet available if the instrument
being assigned has not been returned from the applicable recording
office), of (A) the Mortgage and (B) any related Assignment of Leases (if
such item is a document separate from the Mortgage);
o An original or copy of the assignment from Seller to Purchaser of all
unrecorded documents relating to the Mortgage Loan;
o The original or a copy of the policy or certificate of the lender's title
insurance issued in connection with such Mortgage Loan (or, if such policy
has not been issued, a "marked up" pro forma title policy marked as
binding and countersigned by the title insurer or its authorized agent, or
an irrevocable, binding commitment to issue such title insurance policy);
o The ground lease relating to such Mortgage Loan, if any;
o The related loan agreement, if any;
o Any related guaranty of payment;
o The lock box agreement or cash management agreement relating to such
Mortgage Loan, if any;
o Copies of UCC financing statements (together with all assignments thereof)
filed in connection with a Mortgage Loan
o An original or copy of the environmental indemnity from the related
Mortgagor, if any;
o An original or copy of the related security agreement (if such item is a
document separate from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof;
o Copies of third-party management agreements, if any;
o Any original of any letter of credit constituting additional collateral
for such Mortgage Loan;
o The original of any environmental insurance policy or, if the original is
held by the related borrower, a copy thereof;
o A copy of any affidavit and indemnification agreement in favor of the
lender;
o A copy of any related co lender agreement or participation agreement; and
o In the case of any Mortgage Loan as to which there exists a related
mezzanine loan, the original or a copy of the related intercreditor
agreement
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Loan Loan
Sequence Number Seller Property Name Street Address City
-------- ------ ------ ---------------------------------- ----------------------------------------------- --------------
2 101 HRECC Renaissance Mayflower Hotel ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
6 104 HRECC ▇▇▇▇▇▇▇▇ ▇▇▇▇ Multifamily (Rollup) Various Various
6.1 104 HRECC Cypress Creek ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
6.2 104 HRECC ▇▇▇▇ Oaks ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
6.3 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ at Landmark ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
6.4 104 HRECC Summerlyn Place 14706 Normandy Court Laurel
6.5 104 HRECC Cambridge Crossing ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
6.6 104 HRECC ▇▇▇▇▇▇ Walk ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New Carrollton
6.7 104 HRECC Lenox Court ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
11 102 HRECC Metropolis Shopping Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Plainfield
Remaining
Term To
Cut-off Stated Stated
Zip Mortgage Amortization Original Date Maturity Maturity Due Monthly
Sequence State Code Rate Basis Balance Balance (months) Date Date Payment
-------- ------- ------- -------- ------------ ----------- ------------ --------- -------- ------- ----------
▇ ▇▇ ▇▇▇▇▇ 5.665% Actual/360 200,000,000 200,000,000 56 3/1/2012 First 957,280.09
6 Various Various 5.800% Actual/360 175,000,000 175,000,000 55 2/1/2012 First 857,581.02
6.1 MD 20782 49,060,694 49,060,694
6.2 MD 20770 44,002,890 44,002,890
6.3 VA 22304 36,416,185 36,416,185
6.4 MD 20708 22,760,116 22,760,116
6.5 MD 20784 9,104,046 9,104,046
6.6 MD 20784 9,104,046 9,104,046
6.7 MD 20784 4,552,023 4,552,023
11 IN 46168 6.470% Actual/360 86,000,000 86,000,000 84 7/1/2014 First 470,123.38
Total $461,000,000
Primary Master Original
Administrative Servicing Servicing Ownership Cross-Collateratized Amortization ▇▇▇ ▇▇▇▇▇ Loan
Sequence Fee Rate Fee Rate Fee Rate Interest Loans (months) Loan Period Group
-------- -------------- --------- --------- --------- -------------------- ------------ -------- ------ ------
2 0.021% 0.010% 0.010% Fee No 0 No 5 1
6 0.021% 0.010% 0.010% Fee No 0 No 5 2
6.1 Fee 2
6.2 Fee 2
6.3 Fee 2
6.4 Fee 2
6.5 Fee 2
6.6 Fee 2
6.7 Fee 2
11 0.021% 0.010% 0.010% Fee ▇▇ ▇ ▇▇ ▇ ▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except as enforcement may be limited by bankruptcy and principles of
equity and, in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized
Group; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property (to the extent that a filing of such a UCC
Financing Statement can perfect such a security interest). An
assignment of each UCC Financing Statement relating to the Mortgage
Loan has been delivered by Seller in blank which the Purchaser or
Trustee, as applicable, or designee is authorized to complete and to
file in the filing office in which such UCC Financing Statement was
filed. Each Mortgage Loan and the related Mortgage (along with any
security agreement and UCC Financing Statement), together with
applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the personal property
described above, and the principal benefits of the security intended
to be provided thereby; provided, if the related security agreement
and/or UCC Financing Statement has been recorded in the name of MERS
or its designee, no assignment of security agreement and/or UCC
Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Seller shall take all actions
as are necessary to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Notwithstanding the foregoing, no representation
is made as to the perfection of any security interest in rents or
any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan, there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
▇▇▇▇▇'▇ or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. All
such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be
reduced) without 30 days' prior written notice to the mortgagee (or,
with respect to nonpayment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as
described above or permits the mortgagee to require insurance as
described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. The Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy
will (or, at the lender's option, will) be applied either to the
repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the
related Mortgage may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the
Mortgage Loan; and provided, further, that, if the related Borrower
holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more property condition
or engineering reports (relating to lead-based paint, asbestos and
radon gas) or environmental site assessments meeting the
requirements of the American Society for Testing and Materials in
effect at the time the related report was or the related reports
were prepared covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such
an assessment, was performed by an experienced licensed (to the
extent required by applicable state law) environmental consulting
firm with respect to each Mortgaged Property securing a Mortgage
Loan in connection with the origination of such Mortgage Loan and
thereafter updated such that, (a) such Environmental Report is dated
no earlier than twelve months prior to the Closing Date, (b) a copy
of each such Environmental Report has been delivered to the
Purchaser; and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of
any applicable environmental laws with respect to any circumstances
or conditions relating to the related Mortgaged Property; or (ii) if
any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the
same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related
to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or
circumstance, (B) the related Mortgagor was required to provide
additional security adequate to cure the subject violation in all
material respects and to obtain an operations and maintenance plan,
(C) such conditions or circumstances were investigated further and
based upon such additional investigation, an independent
environmental consultant recommended no further investigation or
remediation, or recommended only the implementation of an operations
and maintenance program, which the Mortgagor is required to do, (D)
there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (E) the
related Mortgaged Property is insured under a policy of insurance
against losses arising from such circumstances and conditions, (F)
the circumstance or condition has been fully remediated, (G) the
related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such
condition or circumstance, (H) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser
of (a) 2% of the outstanding principal balance of the related
Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another
responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority, or (J) a
responsible party with financial resources reasonably adequate to
cure the violation provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are
no significant or material circumstances or conditions with respect
to any Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Mortgagor questionnaire delivered
to Seller at the issue of any related environmental insurance
policy, if applicable, that render such Mortgaged Property in
material violation of any applicable environmental laws. The
Mortgage, or other Loan Document in the Mortgage File, for each
Mortgage Loan encumbering the Mortgaged Property requires the
related Mortgagor to comply and cause the Mortgaged Property to
comply with all applicable federal, state and local environmental
laws and regulations. The Seller has not taken any action which
would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards or
which could subject the Seller or its successors and assigns to
liability under such laws. Each Mortgagor represents and warrants in
the related Loan Documents generally to the effect that except as
set forth in certain specified environmental reports and to the best
of its knowledge that as of the date of origination of such Mortgage
Loan, there were no hazardous materials on the related Mortgaged
Property, and that the Mortgagor will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials, in
any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend
and hold the Seller and its successors and assigns harmless from and
against, or otherwise be liable for, any and all losses resulting
from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage
Loan, generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization (except as disclosed in the Prospectus Supplement) or
for the negative amortization of interest, except that, in the case
of an ARD Loan, such Mortgage Loan provides that, during the period
commencing on or about the related Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be
payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) subject to available funds, a portion of
the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to
the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Mortgagor under the Mortgage Loan or
otherwise nor holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since April 23, 2007. The
Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage. The terms of the related Mortgage do not
provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than 125% of the related
allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of
such Mortgage Loan, (c) Mortgage Loans which permit defeasance by
means of substituting for the Mortgaged Property (or, in the case of
a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to
pay the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) either through and including
the maturity date of the Mortgage Loan or to the first date that the
Borrower can prepay the Mortgage Loan without prepayment premium,
and in the case of ARD Loans, assuming the Anticipated Repayment
Date is the Stated Maturity Date. Further, the Mortgage or other
related Loan Document contained in the Mortgage File requires that
an independent certified public accountant certify that such
government securities are sufficient to make all such scheduled
payments when due. To Seller's actual knowledge, defeasance under
the Mortgage Loan is only for the purpose of facilitating the
release of the Mortgaged Property and not as a part of an
arrangement to collateralize a REMIC with obligations that are not
real estate mortgages. With respect to each Defeasance Loan, the
related Mortgage or other related Loan Document provides that the
related Mortgagor shall (or permits the mortgagee to require the
Mortgagor to) (a) pay all Rating Agency fees associated with
defeasance (if Rating Agency approval is a specific condition
precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and
opinions of counsel, or (b) provide all opinions reasonably required
by the mortgagee under the related Loan Documents, including, if
applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Balance
equal to or greater than $20,000,000, the Mortgage Loan or the
related documents require (or permit the mortgagee to require)
confirmation from the Rating Agency that exercise of the defeasance
option will not cause a downgrade or withdrawal of the rating
assigned to any securities backed by the Mortgage Loan and require
(or permit the mortgagee to require) the Mortgagor to pay any Rating
Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a
legal non-conforming use or structure, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide,
and/or which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified
under applicable law to serve as such, has either been properly
designated and currently so serves or may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor was in possession of all material licenses,
permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20,000,000 shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the
related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted
a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage Loans
secured by Ground Leases, each of the Mortgagors (or its affiliates) has
title in the fee simple interest in each related Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal; if any ARD Loan is not paid in full by its Anticipated
Repayment Date, and assuming that it is not otherwise in default, the rate
at which such Mortgage Loan accrues interest will increase to the sum of
the original Mortgage Rate and a specified margin not less than 2 percent
(2%); the Anticipated Repayment Date of any such Mortgage Loan is not less
than 7 years from the date of origination; and after the Anticipated
Repayment Date, the Loan Documents provide that excess cash flow after
payment of expenses, including scheduled interest and capital expenditures
approved by the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required under
applicable law as of the date of origination, and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it
originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No Financing
for Incomplete Improvements. No Mortgage Loan, other than an ARD Loan (and
then only after the Anticipated Repayment Date for such ARD Loan),
provides for the negative amortization of interest. Neither the Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan. The Mortgage Loan was not
originated for the purpose of financing the construction of incomplete
improvements on the related Mortgaged Property other than tenant
improvements.
(49) No Fraud. Neither the Seller, the originator, nor any employee
or agent of the Seller or the originator has participated in any fraud or
intentional material misrepresentation with respect to the Mortgagor, the
Mortgaged Property or any guarantor. To Seller's actual knowledge, no
Mortgagor or guarantor is guilty of defrauding or making an intentional
material misrepresentation to the Seller with respect to the origination
of the Mortgage Loan, the Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for delinquent Monthly Payments no longer than 10 days from
the applicable Due Date other than as disclosed in the Mortgage Loan
Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or the Mortgagor or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of the Mortgage Loan; the appraisal or a supplemental
letter from the appraiser states that the appraisal satisfies the
appraisal guidelines set forth in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (as amended), all as in
effect on the date the Mortgage Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the Prospectus
Supplement, (a) no Mortgagor is the Mortgagor with respect to more than
one Mortgage Loan and (b) to the Seller's knowledge, no group of Mortgage
Loans with affiliated Mortgagors have an aggregate principal balance
equaling more than $366,059,373.
(53) Environmental Insurance Policies. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor environmental
insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to
the insurer under such policy the "pollution conditions" (as
defined in such policy) identified in any environmental
reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports
in the Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent
required by such policy or to the extent the failure to make
any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of the
Mortgage Loan (or 5 years beyond the Anticipated Repayment Date with
respect to an ARD Loan) and is not cancelable during such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and the
environmental insurance for such Mortgage Loan is not a secured
creditor policy but was required to be obtained by the Mortgagor,
then the holder of the Mortgage Loan is entitled to be an additional
insured under such policy, all premiums have been paid, such
insurance is in full force and effect, such policy may not be
cancelled or amended without the consent of the Seller or its
successors and assigns and, to the Seller's knowledge, the Mortgagor
has made the disclosures and complied with the requirements of
clauses (a) and (b) of this Paragraph (53).
(54) Access. The Mortgaged Property is located on or adjacent to a
public road, or has access to an irrevocable easement permitting ingress
and egress.
SCHEDULE IIA
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------------------
Mortgage Loan Exception
--------------------------------------------------------------------------------
Exceptions to Representation (3) Good Title; Conveyance.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $100,000,000 pari passu A
note.
--------------------------------------------------------------------------------
Loan ▇▇. ▇▇▇ (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $9,000,000 subordinate B
note.
--------------------------------------------------------------------------------
Exceptions to Representation (6) Assignment of Leases and Rents.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $100,000,000 pari passu A
note.
--------------------------------------------------------------------------------
Loan ▇▇. ▇▇▇ (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $9,000,000 subordinate B
note.
--------------------------------------------------------------------------------
Exceptions to Representation (9) Mortgage Lien.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $100,000,000 pari passu A
note.
--------------------------------------------------------------------------------
Loan ▇▇. ▇▇▇ (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $9,000,000 subordinate B
note.
--------------------------------------------------------------------------------
Exceptions to Representation (21) Bankruptcy.
--------------------------------------------------------------------------------
The Seller makes no representation
regarding the bankruptcy or
insolvency of any tenant at the
All Mortgage Loans Mortgaged Property.
--------------------------------------------------------------------------------
Whole Loan; Interest Only; No Equity
Exceptions to Representation (22) Participation or Contingent Interest.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) The Mortgage Loan is not a whole
loan but is one of two pari passu A
notes, each evidencing an interest
in a whole loan with an` original
aggregate principal balance of
$275,000,000.
--------------------------------------------------------------------------------
Loan No. 102 (Metropolis Shopping The Mortgage Loan is not a whole loan
Center) but is one of two A/B promissory
notes, each evidencing an interest in
a whole loan with an original
aggregate principal balance of
$95,000,000.
--------------------------------------------------------------------------------
Loan No. 101 (Renaissance Mayflower Hotel) These Mortgage Loans provide for
interest-only payments without
principal amortization.
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio)
Loan No. 102 (Metropolis Shopping Center)
--------------------------------------------------------------------------------
Exceptions to Representation (23) Transfers and Subordinate Debt.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) Holders of direct or indirect equity
in the borrower have incurred
mezzanine "A" and mezzanine "B" debt
secured by their equity interests in
the borrower. The mezzanine "A" loan
is a $46,000,000 future-funding
capital improvement loan of which
$10,520,805.50 has been funded as of
July 11, 2007. The mezzanine "B"
loan is a $25,000,000 fully-funded
junior mezzanine tranche. The
mezzanine lenders have executed an
intercreditor agreement in favor of
the lender.
In addition to the Mortgage Loan, the
related Mortgaged Property secures a
$100,000,000 pari passu A note.
--------------------------------------------------------------------------------
Loan ▇▇. ▇▇▇ (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) In addition to the Mortgage Loan,
the related Mortgaged Property
secures a $9,000,000 subordinate B
note.
The Loan Documents permit the equity
owners of the borrower to obtain
future mezzanine financing subject to
satisfaction of conditions contained
in the Loan Documents.
--------------------------------------------------------------------------------
Exception to Representation (26) Releases of Mortgaged Property.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) The Loan Documents permit the
borrower to obtain a release of an
individual Mortgaged Property from
the lien of the Mortgage at a
release price equal to the greater
of (A) (i) 100% of the allocated
loan amount with respect to the
first $115,300,000; (ii) 110% of the
allocated loan amount with respect
to the second $115,300,000; and
(iii) 120% of the allocated loan
amount with respect to the third
$115,300,000, (B) an amount which
would result in the debt service
coverage ratio for all remaining
Mortgaged Properties being greater
or equal to 1.20x (on an
interest-only basis) or (C) an
amount which would result in the
debt service coverage ratio for all
remaining Mortgaged Properties being
greater or equal to the debt service
coverage ratio immediately prior to
such release. In addition, the
borrower must pay the mortgagee (i)
the related yield maintenance
premium calculated on the release
price, (ii) interest through the end
of the related interest accrual
period if the partial release does
not occur on a payment date and
(iii) certain costs and expenses.
Furthermore, the partial release may
not alter the borrower's obligations
under the Loan Documents, except
that existing escrow accounts will
be adjusted accordingly with respect
to the release of funds previously
allocated to the released properties.
--------------------------------------------------------------------------------
Exception to Representation (30) Single-Purpose Entity.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio The related borrower is a "recycled"
single purpose entity, which was
formed for the purpose of holding an
asset that is not the Mortgaged
Property no longer held by the
related borrower, but which
organizational documents were
amended and restated to provide
that, among other things, the
borrower shall hold no property
other than the Mortgaged Property.
--------------------------------------------------------------------------------
Exception to Representation (41) Non-Recourse Exceptions.
--------------------------------------------------------------------------------
Loan No. 101 (Renaissance Mayflower Hotel) The recourse carveout guarantor is
Rockwood VI I REIT, Inc., rather
than a natural person.
--------------------------------------------------------------------------------
Loan No. 104 (▇▇▇▇▇▇▇▇ ▇▇▇▇ Portfolio) The recourse carveout guarantor is
Rockwood VI REIT, Inc., rather than
a natural person.
