EXHIBIT 99.4
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of February 1, 2007, among Bank of America, National
Association ("Bank of America"), Eurohypo AG, New York Branch ("Eurohypo" and,
together with Bank of America, the "Sellers"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Sellers 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, their respective 50% interests in one mortgage
loan co-originated by Bank of America and Eurohypo (the "Mortgage Loan")
identified on the schedule annexed hereto as Schedule I (the "Mortgage Loan
Schedule"), except that Bank of America will retain the master servicing rights
(the "Servicing Rights") with regard to the Mortgage Loan in its capacity as
Master Servicer (as defined below) and shall enter into certain Sub-Servicing
Agreements with Sub-Servicers, all as contemplated in the Pooling and Servicing
Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of: (i) the
Mortgage Loan; (ii) certain mortgage loans transferred by 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; and (iii) certain
mortgage loans transferred by Eurohypo to the Purchaser pursuant to a mortgage
loan purchase and sale agreement, dated as of the date hereof, between Eurohypo
and the Purchaser to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Fitch, Inc. and/or Xxxxx'x
Investors Service, Inc. (together, the "Rating Agencies"). Certain classes of
the Certificates (the "Offered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of February 1, 2007 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), LNR Partners, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, 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"), Citigroup Global Markets Inc. ("Citigroup"), Commerzbank
Capital Markets Corp. ("Commerz") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx" and, collectively with BAS, Citigroup and Commerz,
the "Underwriters") pursuant to an underwriting agreement, dated as of February
15, 2007 (the "Underwriting Agreement"). BACM intends to place the remaining
Classes of Certificates (the "Non-Offered Certificates") through BAS, as
placement agent (in such capacity, the "Placement Agent"), pursuant to a private
placement agency agreement, dated as of February 15, 2007 (the "Private
Placement Agency Agreement"), among BACM and BAS. The Offered Certificates are
more fully described in the prospectus dated February 15, 2007 (the "Base
Prospectus"), and the supplement to the Base Prospectus dated February 15, 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 February 15, 2007 (the "Memorandum"), as it may be
amended or supplemented at any time hereafter.
Each Seller will indemnify the Underwriters, the Placement Agent and
certain related parties with respect to certain disclosure regarding the
Mortgage Loan and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to a separate indemnification agreement, dated as of February 1, 2007
(the "Indemnification Agreement"), among the relevant Seller, the Purchaser, the
Underwriters and the Placement Agent.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Each Seller agrees to sell, and the Purchaser agrees to purchase,
the Mortgage Loan. The closing for the purchase and sale of the Mortgage Loan
shall take place on the Closing Date. The purchase price for the Mortgage Loan
shall be an amount agreed upon by the parties in a separate writing, which
amount shall be payable on or about February 27, 2007 in immediately available
funds. The Purchaser shall be entitled to all interest accrued on the Mortgage
Loan on and after the Cut-off Date and all principal payments received on the
Mortgage Loan after the Cut-off Date except for principal and interest payments
due and payable on the Mortgage Loan on or before the Cut-off Date, which shall
belong to the Sellers.
SECTION 2. Conveyance of the Mortgage Loan.
(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, each 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 such
Seller in and to the Mortgage Loan (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loan after the Cut-off Date, together with their respective 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 Loan 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 Loan on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Sellers).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Sellers
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; provided, however, the delivery of such Mortgage by one such
Seller shall satisfy the delivery requirements of each Seller under this Section
2 and under Section 2.01 of the Pooling and Servicing Agreement.
(d) Each Seller hereby represents that it has, on behalf of the
Purchaser, delivered or caused to be delivered to the Trustee the Mortgage File
for the Mortgage Loan. If the Mortgage File is delivered prior to the Closing
Date, it will be held by the Trustee in escrow at all times prior to the Closing
Date. The Mortgage File shall contain the documents set forth in the definition
of "Mortgage File" under the Pooling and Servicing Agreement.
(e) If such 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 such Seller
cannot so deliver, or cause to be delivered 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 such 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 such
Seller cannot or does not so deliver, or cause to be delivered 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 such Seller cannot so deliver, or cause to be delivered 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 such 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) [Reserved].
(h) If and when the Sellers are notified of or discover any error in
the Mortgage Loan Schedule attached to this Agreement as to which the Mortgage
Loan is affected, the Sellers 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, each Seller will report the transfer of the related
portion of the Mortgage Loan to the Purchaser as a sale of such portion of the
Mortgage Loan to the Purchaser in exchange for its respective share of the
consideration referred to in Section 1 hereof. In connection with the foregoing,
the Sellers shall cause all of their respective records to reflect such transfer
as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
Each Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loan 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
such Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Sellers.
(a) Each Seller hereby represents and warrants to and for the
benefit of the Purchaser as of the Closing Date that:
(i) Bank of America is a national banking association duly
authorized and validly existing and in good standing under the laws of the
United States of America. Eurohypo is duly licensed and authorized to
transact business in the State of New York as a branch of a foreign bank
under Article V of the Banking Law of the United States.
(ii) The execution and delivery of this Agreement by such Seller,
and the performance of such Seller's obligations under this Agreement,
will not violate such 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 such
Seller's good faith and commercially reasonable judgment is likely to
affect materially and adversely either the ability of such Seller to
perform its obligations under this Agreement or its financial condition.
(iii) Such 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 such Seller, enforceable against such 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) Such 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 such Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of such Seller to perform its obligations under this Agreement or the
financial condition of such Seller.
(vi) No litigation is pending with regard to which such Seller has
received service of process or, to the best of such Seller's knowledge,
threatened against such Seller which if determined adversely to such
Seller would prohibit such Seller from entering into this Agreement, or in
such Seller's good faith and reasonable judgment, would be likely to
materially and adversely affect either the ability of such Seller to
perform its obligations under this Agreement or the financial condition of
such 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 such 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) Each 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) such Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Sellers in writing and
request that the Sellers correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Sellers that there has been a Material Breach or a
Material Document Defect (such 90-day period, the "Initial Resolution Period"),
the Sellers shall cure such Material Breach or Material Document Defect, as
applicable, or repurchase its related Mortgage Note. Additionally, any cure by
either Seller that also cures the Material Document Defect or Material Breach
with respect to the Mortgage Loan shall satisfy the cure obligations of each
Seller with respect to the Mortgage Loan. The Sellers shall have no obligation
to monitor the Mortgage Loan regarding the existence of a Material Breach or
Material Document Defect, but if either Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser and the other Seller.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
the 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 the Mortgage Loan when such Mortgage Loan 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 Sellers 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 the Mortgage Loan when such Mortgage Loan 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 Sellers 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 the Mortgage Loan when such Mortgage Loan is a Specially
Serviced Loan as of the commencement of the applicable Initial Resolution
Period, zero days; provided, however, if the Sellers did not receive
written notice from the Master Servicer or the Special Servicer of the
relevant Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event shall be
deemed to have occurred during such Initial Resolution Period and the
immediately preceding clause (iii) of this definition will be deemed to
apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Breach, provided that such
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
Except as set forth in Section 4(f), it is understood and agreed that the
obligations of the Sellers set forth in this Section 4(c) to cure a Material
Breach or a Material Document Defect or repurchase the related Defective
Mortgage Loan, constitute the sole remedies available to the Purchaser with
respect to any Breach or Document Defect. In addition, any failure of Bank of
America or Eurohypo to honor its obligations under its separate mortgage loan
purchase and sale agreement shall not increase the liability or obligations of
the Sellers hereunder.
In the event that either Seller's portion of the Mortgage Loan is
repurchased pursuant to this Section 4 and the other related 50% interest is not
repurchased by either Bank of America or Eurohypo, as applicable, and the
Mortgage Loan remains in the Trust, the Sellers and the Depositor hereby agree
that the provisions in Section 3.01(f) of the Pooling and Servicing Agreement
shall govern the servicing and administration of the Mortgage Loan on a whole
loan basis (including the repurchased Mortgage Note and the other related
Mortgage Note not so repurchased) and the Sellers' and the Depositor's rights
and obligations with respect thereto.
It shall be a condition to the repurchase of the related Defective
Mortgage Loan by the Sellers 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 Sellers, in each case without recourse, as shall be
necessary to vest in the Sellers 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 Sellers cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for the
Mortgage Loan, then:
(i) the Sellers 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 Sellers;
(ii) the Sellers 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 Sellers have delivered to the Purchaser or its
designee all documents required to be delivered by the Sellers as part of
such Mortgage File;
(iii) upon receipt by each Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
the 90th day following the Closing Date, each 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, each Seller shall deliver to the Purchaser or its
designee a limited power of attorney (in a form reasonably acceptable to
each 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) each Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from such Seller's failure to deliver all documents
required to be part of such Mortgage File; provided that each such Seller
is only liable for its pro rata share, i.e., 50%, of any such costs and
expenses incurred with respect to the Mortgage Loan; and
(v) each 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, each Seller shall provide the Purchaser (or
with respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Sellers; provided that each
such Seller is only liable for its pro rata share, i.e., 50%, of any such fees
and expenses incurred with respect to the Mortgage Loan.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, each 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 Sellers, 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 Loan 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 Loan (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of each Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and each Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) Each 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 Loan 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 each Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) Each Seller (or any 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 of the parties agrees to use its commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loan on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
each 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
each Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of each Seller; and
(d) Certificate of good standing or corporate existence regarding
the Sellers from the Comptroller of the Currency (with respect to Bank of
America) and the State of New York Banking Department (with respect to
Eurohypo), dated not earlier than 30 days prior to the Closing Date; and
(e) A certificate of each Seller, executed by an executive officer
or authorized signatory of each Seller and dated the Closing Date, and upon
which the Purchaser, the Underwriters and the Placement Agent may rely to the
effect that (i) the representations and warranties of the Sellers in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Sellers
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 each Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for
each 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 each 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 Loan 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.
For the avoidance of doubt, each Seller shall only be required to pay its pro
rata share (i.e., 50%) of any such costs with respect to the Mortgage Loan.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X.
Xxxxxxx, Esq., Assistant General Counsel, at Bank of America Corporate Center,
000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other
address as may hereafter be furnished to the Sellers in writing by the
Purchaser; if to the Sellers, addressed to Bank of America, National
Association, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxx, telecopy number: (000) 000-0000 (with copies
to Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, at Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202) and to
Eurohypo AG, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx or to such other addresses as may hereafter be
furnished to the Purchaser by such Sellers 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 each Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loan by the
Sellers 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 SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
Each Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of any Seller under this Agreement shall
not be assigned by such Seller without the prior written consent of the
Purchaser, except that any person into which such Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which such Seller is a party, or any person
succeeding to all or substantially all of the business of such Seller, shall be
the successor to such Seller hereunder. In connection with its transfer of the
Mortgage Loan 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 each
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 each 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 Loan.
The parties hereto intend that the conveyance by the Sellers agreed
to be made hereby shall be, and be construed as a sale by the Sellers of all of
each Seller's right, title and interest in and to the Mortgage Loan. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loan by the Sellers to the Purchaser to secure a debt or other obligation of the
Sellers, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loan is held to be property of the Sellers,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loan, 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 Sellers to the Purchaser of a
security interest in all of their 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 Loan 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 Sellers 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 Loan, 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. [Reserved.]
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 any Seller without the
consent of each such Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
EUROHYPO AG, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
Sequence Loan Number Loan Seller (1) Property Name (2) Street Address
-------- ----------- -------------------------- -------------------------- ------------------
1 0000000 Bank of America / Eurohypo Skyline Portfolio (Rollup) Various
1.1 0000000 Bank of America / Eurohypo One Skyline Tower 0000 Xxxxxxxx Xxxx
1.2 0000000 Bank of America / Eurohypo Seven Skyline Place 0000 Xxxxxxxx Xxxx
1.3 0000000 Bank of America / Eurohypo Six Skyline Place 0000 Xxxxxxxx Xxxx
1.4 0000000 Bank of America / Eurohypo Five Skyline Place 0000 Xxxxxxxx Xxxx
1.5 0000000 Bank of America / Eurohypo One Skyline Place 0000 Xxxxxxxx Xxxx
1.6 0000000 Bank of America / Eurohypo Four Skyline Place 0000 Xxxxxxxx Xxxx
1.7 0000000 Bank of America / Eurohypo Two Skyline Place 0000 Xxxxxxxx Xxxx
1.8 0000000 Bank of America / Eurohypo Three Skyline Place 5201 Leesburg Pike
Sequence City State Zip Code Mortgage Rate (3)(4) Amortization Basis (5) Original Balance Cut-off Date Balance
-------- ------------ ----- -------- -------------------- ---------------------- ---------------- --------------------
1 Xxxxx Xxxxxx XX 00000 5.743% Actual/360 $271,200,000 $271,200,000
1.1 Xxxxx Xxxxxx XX 00000 53,880,000 53,880,000
1.2 Xxxxx Xxxxxx XX 00000 40,320,000 40,320,000
1.3 Xxxxx Xxxxxx XX 00000 32,760,000 32,760,000
1.4 Xxxxx Xxxxxx XX 00000 31,480,000 31,480,000
1.5 Xxxxx Xxxxxx XX 00000 29,320,000 29,320,000
1.6 Xxxxx Xxxxxx XX 00000 28,200,000 28,200,000
1.7 Xxxxx Xxxxxx XX 00000 28,000,000 28,000,000
1.8 Xxxxx Xxxxxx XX 00000 27,240,000 27,240,000
Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
-------- ------------------------------------------ -------------------- -------- ---------------
1 120 2/1/2017 First 1,315,945
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
Sequence Administrative Fee Rate (4)(6) Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
-------- ------------------------------ -------------------------- ------------------------- ------------------
1 0.021% 0.010% 0.020% Fee
1.1 Fee
1.2 Fee
1.3 Fee
1.4 Fee
1.5 Fee
1.6 Fee
1.7 Fee
1.8 Fee
Sequence Cross-Collateralized Loans Original Amortization (months)(5) ARD Loan Grace Period Loan Group
-------- -------------------------- --------------------------------- -------- ------------ ----------
1 No 0 No 3 1
1.1 1
1.2 1
1.3 1
1.4 1
1.5 1
1.6 1
1.7 1
1.8 1
1) Loan No. 3405106, representing 8.5% of the Initial Pool Balance (10.7%of
the Group 1 Balance), was co-originated by Bank of America, National
Association (50%) and Eurohypo AG, New York Branch (50%).
4) Rates are to full precision on the "BACM2007_1.xls" file located on the
computer diskette.
5) For mortgage loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the mortgage loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
6) Administrative Fee Rate includes the rates at which the master servicing
fee (and any sub-servicing fee) and trustee fee accrue.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except 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. An assignment of each UCC Financing Statement
relating to the Mortgage Loan has been delivered by Seller in blank
which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which
such UCC Financing Statement was filed. Each Mortgage Loan and the
related Mortgage (along with any security agreement and UCC
Financing Statement), together with applicable state law, contain
customary and enforceable provisions such as to render the rights
and remedies of the holders thereof adequate for the practical
realization against the personal property described above, and the
principal benefits of the security intended to be provided thereby;
provided, if the related security agreement and/or UCC Financing
Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or any other personal
property to the extent that the possession or control of such items
or actions other than the filing of the UCC Financing Statement as
required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan, there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. All
such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be
reduced) without 30 days' prior written notice to the mortgagee (or,
with respect to non-payment, 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 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 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 January 18, 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 Mortgage Loan
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 loan or to the first date that the Borrower
can prepay the Loan without a 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, 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 $
184,806,114.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to
the insurer under such policy copies of all
environmental reports in the Seller's possession related
to such Mortgaged Property,
in each case with respect to (i) and (ii) to the
extent required by such policy or to the extent the
failure to make any such disclosure or deliver any such
report would materially and adversely affect the
Purchaser's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE SKYLINE MORTGAGE LOAN
REPRESENTATION 14
Insurance.
Skyline Portfolio (3405106) The related loan documents provide that the loss
of rents or income, as applicable, will be
insured until the earlier of (i) completion of
restoration or, in some cases, the return of
rents/income to the level which existed prior to
the loss, or (ii) the expiration of twelve (12)
months.
Skyline Portfolio (3405106) With respect to terrorism insurance coverage, the
related Borrower has a cap of $625,000 per year
for terrorism insurance premium costs for the
Mortgaged Property.
Skyline Portfolio (3405106) The related Mortgage Loan has a Cut-off Date
balance equal to or greater than $20,000,000, and
the loan agreement provides as follows: All
insurance polices shall be issued by companies
which either (1) shall each have a financial
strength and claims paying ability rating of at
least "A-" or better by S&P, or (2) if (A) more
than one (1) but less than five (5) insurance
companies issue the Policies required hereunder,
then at least seventy-five percent (75%) of the
applicable insurance coverages represented by the
Policies required hereunder must be provided by
insurance companies having a credit rating of
"A-" or better by S&P (or the equivalent rating
by Xxxxx'x and Fitch) and the balance of the
applicable insurance coverages represented by the
Policies required hereunder must be provided by
insurance companies having a credit rating of
"BBB" or better by S&P (or the equivalent rating
by Xxxxx'x and Fitch), provided that FM Global
can participate for no more than forty percent
(40%) so long as it maintains a rating of A:XIII
from A.M. Best Company and is not part of the
primary layer of insurance providers or (B) five
(5) or more insurance companies issue the
Policies required hereunder, then at least sixty
percent (60%) of the applicable insurance
coverages required hereunder must be provided by
insurance companies having a credit rating of
"A-" or better by S&P (or the equivalent rating
by Xxxxx'x and Fitch) and at least 95% of the
total of the applicable insurance coverages
required hereunder must be provided by insurance
companies having a credit rating of "BBB" or
better by S&P (or the equivalent rating by
Xxxxx'x and Fitch); provided that FM Global will
be treated as having a credit rating "BBB" and
may participate for no more than forty percent
(40%) so long as it maintains a rating of A:XIII
from A.M. Best Company and is not part of the
primary layer of insurance providers. If a
Securitization occurs and more than five (5)
insurance companies issue the Policies required
hereunder, the foregoing required insurance
company rating by a Rating Agency not rating any
Securities shall be disregarded. If a
Securitization occurs and S&P is not a Rating
Agency, each of the insurance companies shall
have the ratings from Fitch and Xxxxx'x as
provided above. Notwithstanding the foregoing,
Borrower shall be permitted to maintain the
Policies required hereunder with insurance
companies which do not meet the foregoing
requirements (an "Otherwise Rated Insurer"),
provided Borrower obtains a "cut-through"
endorsement (that is, an endorsement which
permits recovery against the provider of such
endorsement) or a contingent property policy
(that is, a credit wrap with respect to an
Otherwise Rated Insurer) acceptable to Lender
with respect to any Otherwise Rated Insurer from
an insurance company which meets the claims
paying ability ratings required above. Moreover,
if Borrower desires to maintain insurance
required hereunder from an insurance company
which does not meet the claims paying ability
ratings set forth herein but the parent of such
insurance company, which owns at least fifty-one
percent (51%) of such insurance company,
maintains such ratings, Borrower may use such
insurance companies if approved by the Rating
Agencies (such approval may be conditioned on
items required by the Rating Agencies including a
requirement that the parent guarantee the
obligations of such insurance company),
The terrorism requirements are as follows: The
insurance coverage required for Terrorism Losses
shall be on terms consistent with those required
under Sections 6.1.1(a) and (d) of the related
Loan Agreement at all times during the term of
the Loan, and (A) Borrower shall either maintain
such coverage through a policy or policies
covering multiple locations so long as such
coverage is on terms consistent with those
required under Sections 6.1.1(a) and (d) with a
deductible of not greater than $500,000.00 or, if
greater, at prevailing insurance market
deductibles for such coverage with such increase
to be reasonably approved by Lender and such
coverage is in an amount, for each Individual
Property, equal to, the lesser of (a) the then
outstanding Allocated Loan Amount for such
Individual Property (provided such policy
contains a waiver of coinsurance) or (b) the sum
of the business income insurance equal to 100% of
the projected gross income from such Individual
Property for a period of twelve (12) months from
the date that such Individual Property is
repaired or replaced and operations are resumed
plus the Full Replacement Cost of such Individual
Property and further provided that if any claim
is made under such policy or policies reducing
the amount of coverage below that which is
required to be maintained under Sections 6.1.1(a)
and (d), then Borrower shall increase the amount
of such policy or policies to an amount that
satisfies the requirements of this Section 6.1.7,
subject to the annual limit on Insurance Premiums
represented by the Terrorism Premium Limit, or
(B) Borrower shall obtain a stand-alone policy or
policies that covers solely the Property against
Terrorism Losses, which stand-alone policy or
policies shall be on terms consistent with those
required under Sections 6.1.1(a) and (d) with a
deductible of not greater than $500,000.00 (or at
prevailing insurance market deductibles for such
coverage with such increase to be reasonably
approved by Lender, such approval not to be
unreasonably withheld, delayed or conditioned)
and such coverage is in an amount, for each
Individual Property, equal to, the lesser of (a)
the then outstanding Allocated Loan Amount for
such Individual Property (provided such policy
contains a waiver of coinsurance) or (b) the sum
of the business income insurance equal to 100% of
the projected gross income from the Property for
a period of twelve (12) months from the date that
such Individual Property is repaired or replaced
and operations are resumed plus the Full
Replacement Cost of such Individual Property.
Notwithstanding the foregoing, in no event shall
Borrower be required to pay annual premiums for
any insurance policy described in (A) or (B)
covering Terrorism Losses in respect of the
Property in excess of the Terrorism Premium Limit
(i.e. if the cost exceeds the Terrorism Premium
Limit, Borrower shall obtain as much coverage for
Terrorism Losses as is available at a cost equal
to the Terrorism Premium Limit). Borrower shall
not be required to maintain Insurance coverage
with respect to terrorism losses that are not
Terrorism Losses. The Terrorism Premium Limit is
$625,000, provided such amount shall be reduced
on a pro rata basis with the release of any
Individual Property. Terrorism Losses is defined
as those types of losses which result from perils
of terrorism and acts of terrorism (i) as are
currently "certified" under TRIA or (ii) as are
not currently "certified" under TRIA, in each
case whether or not TRIA is in effect, excluding
losses for nuclear, biological, radiological or
chemical acts.
REPRESENTATION 22
Whole Loan; Interest Only; No Equity Participation or Contingent Interest.
Skyline Portfolio (3405106) The related Mortgage Loan is interest only for the
entire term.
REPRESENTATION 26
Releases of Mortgaged Property.
Skyline Portfolio (3405106) At any time after the earlier of 36 months from
the closing date of the related Mortgage Loan and
24 months after the closing date of the
securitization the last Securitization that
includes any portion of the Skyline Portfolio Loan
and in connection with a partial defeasance of the
Skyline Portfolio Loan, the Skyline Portfolio
Borrower may obtain the release of some or all of
the portions of the Skyline Portfolio Mortgaged
Property (each, an "Individual Property"), subject
to the satisfaction of certain conditions,
including, but not limited to: (i) no event of
default exists; (ii) payment of (a) 100% of the
"Allocated Loan Amount" (as defined in the related
loan agreement) related to such Individual
Property or Individual Properties to be released
which, when taken together with any Individual
Property previously released, is less than or
equal to $135,600,000; (b) 110% of the "Allocated
Loan Amount" (as defined in the related loan
agreement) related to such Individual Property or
Individual Properties to be released which, when
taken together with any Individual Property
previously released, is greater than $135,600,000
and less than or equal to $271,200,000; (c) 115%
of the "Allocated Loan Amount" (as defined in the
related loan agreement) related to such Individual
Property or Individual Properties to be released
which, when taken together with any Individual
Property previously released, is greater than
$271,200,000 and less than or equal to
$406,800,000; or (d) 125% of the "Allocated Loan
Amount" (as defined in the related loan agreement)
related to such Individual Property or Individual
Properties to be released which, when taken
together with any Individual Property previously
released, is greater than $406,800,000; (iii)
delivery of a pledge and security agreement in
form and substance satisfactory to a prudent
lender and defeasance collateral meeting the
requirements of the related loan agreement; (iv)
confirmation from the rating agencies that such a
release will not result in a downgrade, withdrawal
or qualification of the ratings issued, or to be
issued, in connection with a securitization
involving the Skyline Portfolio Mortgage Loan; and
(v) after giving effect to such release the debt
service coverage ratio must be not less than the
greater of (a) (1) 80% of the debt service
coverage ratio for the trailing 12 months
immediately preceding the release or (2) a debt
service coverage ratio in an amount sufficient to
obtain a rating agency confirmation or (b) the
debt service coverage ratio as of the closing date
of the Skyline Portfolio Loan.
REPRESENTATION 27
Defeasance.
Skyline Portfolio (3405106) Defeasance collateral is required to be in an
amount sufficient to make all scheduled payments
through the end of the prepayment lockout period
rather than through the maturity date of the
related Mortgage Loan.
REPRESENTATION 41
Non-Recourse Exceptions.
Skyline Portfolio (3405106) There is no Borrower Principal
in connection with these
Mortgage Loans.
