MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of May 21, 2008 (this
"Agreement"), is entered into between Dexia Real Estate Capital Markets (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans") acquired from other entities (the "Other Sellers"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes of mortgage pass-through certificates (the "Certificates"). One
or more "real estate mortgage investment conduit" ("REMIC") elections will be
made with respect to most of the Trust Fund. The Trust Fund will be created and
the Certificates will be issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2008 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, Bank of America, National Association, Midland Loan
Services, Inc. ("Midland") and Wachovia Bank, National Association as master
servicers (each, in such capacity, a "Master Servicer"), Midland as special
servicer (the "Special Servicer"), U.S. Bank National Association as trustee
(the "Trustee") and LaSalle Bank National Association as certificate
administrator and custodian (in such capacities, the "Certificate Administrator"
and "Custodian", respectively). Capitalized terms used but not defined herein
(including the schedules attached hereto) have the respective meanings set forth
in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
May 21, 2008 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative of Banc
of America Securities LLC ("Banc of America Securities"), Citigroup Global
Markets Inc. ("Citigroup") and PNC Capital Markets LLC ("PNC Capital"; Xxxxxxx
Xxxxx, Banc of America Securities, Citigroup and PNC Capital, collectively, in
such capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of May 21, 2008 (the "Certificate Purchase Agreement"), with
Xxxxxxx Xxxxx for itself and as representative of Banc of America Securities
(together in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (such
Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $220,881,621 (the "Dexia Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-off Date, after giving
effect to any payments due on or before such date, whether or not such payments
are received. The Dexia Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $948,772,134 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take place on June
12, 2008 or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 98.015794891% of
the Dexia Mortgage Loan Balance as of the Cut-off Date, plus (ii) $442,236.23,
which amount represents the amount of interest accrued on the Dexia Mortgage
Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Pooling and Servicing Agreement, the sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement (as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Custodian (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered will be held
by the Custodian in escrow for the benefit of the Seller at all times prior to
the Closing Date. The Mortgage File with respect to each Mortgage Loan that is a
Serviced Trust Mortgage Loan shall contain the following documents:
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(i) (A) the original executed Mortgage Note for the subject
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of U.S. Bank National Association, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust 2008-C1, Commercial Mortgage
Pass-Through Certificates, Series 2008-C1, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in each
case (unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name and address (if the assignment is
delivered in blank) and any missing recording information or a certified
copy of that assignment as sent for recording), of (a) the Mortgage, (b)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of U.S.
Bank National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through
Certificates, Series 2008-C1 (or, in the case of a Loan Combination, in
favor of U.S. Bank National Association, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust 2008-C1, Commercial Mortgage
Pass-Through Certificates, Series 2008-C1, and in its capacity as lead
lender on behalf of the holder(s) of the related Non-Trust Loan(s)), or in
blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above) in favor of U.S. Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2008-C1, Commercial
Mortgage Pass-Through Certificates, Series 2008-C1 (or, in the case of a
Loan Combination, in favor of U.S. Bank National Association, as trustee
for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2008-C1,
Commercial Mortgage Pass-Through Certificates, Series 2008-C1, and in its
capacity as lead lender on behalf of the holder(s) of the related Non-Trust
Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or a marked version of the policy that has been
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executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of U.S. Bank National Association, as trustee
for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2008-C1,
Commercial Mortgage Pass-Through Certificates, Series 2008-C1, as assignee
(or, in the case of a Loan Combination, in favor of U.S. Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through Certificates,
Series 2008-C1, and in its capacity as lead lender on behalf of the holder
of the related Non-Trust Loan(s));
(ix) an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement relating
to permitted debt of the Mortgagor and any intercreditor agreement relating
to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any agreed upon procedures
letter, any lockbox or cash management agreements, any environmental
reports or any letter of credit (which letter of credit shall not be
delivered in original form to the Custodian, but rather to the applicable
Master Servicer), in each case relating to the subject Mortgage Loan;
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan Combination,
an original or a copy of the related Loan Combination Co-Lender Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to permit
the Custodian to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement with respect to the Mortgage Loans, including
paying the fees (as agreed to between the Seller and the Custodian) charged by
the Custodian in connection with the performance by the Custodian of the
recording, filing and delivery obligations it has undertaken pursuant to Section
2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller,
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together with all unapplied escrow amounts and reserve amounts in the possession
or under the control of the Seller that relate to the Mortgage Loans, shall be
delivered or caused to be delivered by the Seller to the applicable Master
Servicer (or, at the direction of such Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting, legal
or other due diligence analyses, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Custodian, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Custodian or any
other person because the delivery of the mortgage loan checklist is being
provided to the Custodian solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Seller
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Seller is a party or by which the Seller is
bound, which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
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(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller in
any court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties pursuant
to Regulation AB. For purpose of this Agreement, "Regulation AB" shall mean
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Sections 229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed
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Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller receives written notice of a Document Defect or a
Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein, cure
such Document Defect or Breach, as the case may be, in all material respects,
which shall include payment of losses and any Additional Trust Fund Expenses
associated therewith or, if such Document Defect or Breach (other than omissions
due solely to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan (which, for the purposes of this clause (i), shall include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement) not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for
purposes of this clause (ii), shall include an REO Loan) not later than the end
of such 90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit into its
Collection Account any Substitution Shortfall Amount in connection therewith;
provided, however, that, unless the Document Defect or Breach would cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach
is capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Certificate Administrator setting forth the reason(s) such
Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to the Specially
Designated Mortgage Loan Documents) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other
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Mortgage Loans (each, a "Crossed Loan" and such Crossed Loans, collectively, a
"Crossed Loan Group"), which Document Defect or Breach does not constitute a
Document Defect or Breach, as the case may be, as to any other Crossed Loan in
such Crossed Loan Group (without regard to this paragraph) and is not cured as
provided for above, shall be deemed to constitute a Document Defect or Breach,
as the case may be, as to each other Crossed Loan in the subject Crossed Loan
Group for purposes of this paragraph and the Seller shall be required to
repurchase or substitute all such Crossed Loans unless (1) the weighted average
debt service coverage ratio for all the remaining Crossed Loans for the four
calendar quarters immediately preceding such repurchase or substitution is not
less than the weighted average debt service coverage ratio for all such Crossed
Loans, including the affected Crossed Loan, for the four calendar quarters
immediately preceding such repurchase or substitution, and (2) the weighted
average loan to-value ratio for the remaining Crossed Loans, determined at the
time of repurchase or substitution, based upon an appraisal obtained by the
Special Servicer at the expense of the Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan determined at the time of repurchase or substitution,
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller; provided, that if such debt service coverage and loan-to-value criteria
are satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Certificate
Administrator, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release would not cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions and (ii) the consent of the Controlling Class Representative
(if one is then acting), which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Document Defect or
Breach exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of a Crossed Loan being repurchased shall be
prepared at the expense of the Seller and, where required, with the consent of
the related Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach known to the Seller that existed as of
the Closing Date, the Seller shall provide, once every 90 days, the officer's
certificate to the Certificate Administrator described above as to the reason(s)
such Document Defect or Breach remains uncured and as to the actions being taken
to pursue cure; provided, however, that, without limiting the effect of the
foregoing provisions of this Section 3(c), if such Document Defect or Breach
shall materially and adversely affect the value of such Mortgage Loan or the
interests of the holders of the Certificates therein (subject to the second and
third provisos in the sole sentence of the preceding paragraph), the Seller
shall in all cases on or prior to the second anniversary of the Closing Date
either cause such Document Defect or Breach to be cured or repurchase or
substitute for the affected Mortgage Loan (for the avoidance of doubt, the
foregoing two-year period shall not be deemed to be a time limitation on the
Seller's right to cure a Document Defect or Breach as set forth in this Section
3). The delivery of a commitment to issue a policy of lender's title insurance
as described in representation 8 set forth on Schedule I hereto in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect or Breach with respect to any Mortgage File if such
actual policy of insurance is delivered to the Custodian not later than the
180th day following the Closing Date.
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To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies or some other mutually agreed
upon accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents, or, if the related
Mortgage Loan documents do not so provide, then on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan is modified to terminate the related cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Certificate
Administrator an Opinion of Counsel that such modification shall not cause an
Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section 3(c),
if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Custodian or the Trust Fund in connection with
such release, (ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set forth in the Mortgage Loan documents and the Seller
provides an opinion of counsel to the effect that such release would not cause
either of REMIC I or REMIC II to fail to qualify as a REMIC under the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received
9
by the applicable Master Servicer or the Special Servicer from the related
Mortgagor and not a repurchase or substitution of the related Mortgage Loan.
Following the Seller's remittance of funds in payment of such costs and
expenses, the Seller shall be deemed to have cured the breach of representation
30 in all respects. To the extent any fees or expenses that are the subject of a
cure by the Seller are subsequently obtained from the related Mortgagor, the
cure payment made by the Seller shall be returned to the Seller. Notwithstanding
the prior provisions of this paragraph, the Seller, acting in its sole
discretion, may effect a repurchase or substitution (in accordance with the
provisions of this Section 3(c) setting forth the manner in which a Mortgage
Loan may be repurchased or substituted) of a Mortgage Loan, as to which
representation 30 set forth on Schedule I has been breached, in lieu of paying
the costs and expenses that were the subject of the breach of representation 30
set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the applicable Master Servicer's Collection
Account, and, if applicable, the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Custodian and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all Qualified Substitute Mortgage Loans which have been substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to the related
date of substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf the
Certificate Administrator may act) on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3.
10
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental
11
agency or instrumentality which would materially and adversely affect the
validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian and
the applicable Master Servicer, respectively, all documents represented to have
been or required to be delivered to the Custodian and such Master Servicer
pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser 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;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of Ernst
& Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus and Prospectus Supplement, respectively, shall have been delivered;
and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of May 21, 2008, among the
Seller, the Other Sellers, the Purchaser, the Underwriters and the Initial
Purchasers.
Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
12
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the agreement(s) pursuant to which the servicing rights with respect
to the Mortgage Loans are being sold to the applicable Master Servicer (such
agreement(s), individually or collectively, as the case may be, the "Servicing
Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Free Writing Prospectus and nothing has come to his/her attention
that leads him/her to believe that the Specified Portions of the Free Writing
Prospectus (when read together with the free writing prospectus which was
distributed to prospective investors in the Certificates by e-mail on May 21,
2008), as of the Time of Sale or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omit to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, (ii) such officer has carefully examined
the Specified Portions (as defined below) of the Prospectus Supplement and
nothing has come to his/her attention that leads him/her to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that leads him/her to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
13
The "Specified Portions" of the Free Writing Prospectus shall consist
of Annex A-1 to the Free Writing Prospectus, entitled "Certain Characteristics
of the Mortgage Loans" (insofar as the information contained in Annex A-1
relates to the Mortgage Loans sold by the Seller hereunder), Annex A-1(YM) to
the Free Writing Prospectus entitled "Yield Maintenance Formulas" (insofar as
the information contained in Annex A-1(YM) relates to the Mortgage Loans sold by
the Seller hereunder), Annex A-2 to the Free Writing Prospectus, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-3 to the Free Writing Prospectus, entitled "7461
Xxxxxxxxx Building Amortization Schedule", Annex B to the Free Writing
Prospectus entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Free Writing Prospectus, entitled
"Structural and Collateral Term Sheet" (insofar as the information contained in
Annex C relates to the Mortgage Loans sold by the Seller hereunder), the CD-ROM
which accompanies the Free Writing Prospectus (insofar as such CD-ROM is
consistent with Annex X-0, Xxxxx X-0(XX), Xxxxx X-0 and/or Annex B (only insofar
as the information contained therein relates to the Mortgage Loans sold by the
Seller hereunder)), and the following sections of the Free Writing Prospectus
(only to the extent that any such information relates to the Seller (solely in
its capacity as a seller, sponsor or originator of the Mortgage Loans sold by
the Seller hereunder), or the Mortgage Loans sold by the Seller hereunder and
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement
and exclusive of aggregated numerical information that includes the Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool", "Transaction
Participants--The Sponsors" and "Affiliations and Certain Relationships and
Related Transactions".
The "Specified Portions" of the Prospectus Supplement shall consist of
Annex A-1 to the Prospectus Supplement, entitled "Certain Characteristics of the
Mortgage Loans" (insofar as the information contained in Annex A-1 relates to
the Mortgage Loans sold by the Seller hereunder), Annex A-1(YM) to the
Prospectus Supplement entitled "Yield Maintenance Formulas" (insofar as the
information contained in Annex A-1(YM) relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled "Certain
Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-3 to the Free Writing Prospectus, entitled "7461
Xxxxxxxxx Building Amortization Schedule", Annex B to the Prospectus Supplement
entitled "Certain Characteristics Regarding Multifamily Properties" (insofar as
the information contained in Annex B relates to the Mortgage Loans sold by the
Seller hereunder), Annex C to the Prospectus Supplement, entitled "Description
of the Ten Largest Mortgage Loans" (insofar as the information contained in
Annex C relates to the Mortgage Loans sold by the Seller hereunder), the CD-ROM
which accompanies the Prospectus Supplement (insofar as such CD-ROM is
consistent with Annex X-0, Xxxxx X-0(XX), Xxxxx X-0 and/or Annex B (only insofar
as the information contained therein related to the Mortgage Loans sold by the
Seller hereunder)), and the following sections of the Prospectus Supplement
(only to the extent that any such information relates to the Seller (solely in
its capacity as a seller, sponsor or originator of the Mortgage Loans sold by
the Seller hereunder), or the Mortgage Loans sold by the Seller hereunder and
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement
and exclusive of aggregated numerical information that includes the Other
Mortgage Loans): "Summary of Prospectus Supplement--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Prospectus Supplement--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
14
to the Mortgage Loans", "Description of the Mortgage Pool", "Transaction
Participants--The Sponsors" and "Affiliations and Certain Relationships and
Related Transactions".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated May 16,
2008, and relating to the Publicly Offered Certificates.
"Memorandum" means the confidential Private Placement Memorandum dated
May 21, 2008, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 10, 2007.
"Prospectus Supplement" means the prospectus supplement dated May 21,
2008, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means May 21, 2008, at 12:45 p.m.
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of Delaware not earlier than 30 days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Certificate Administrator, the
Custodian, the Underwriters, the Initial Purchasers and each of the Rating
Agencies, together with such other written opinions, including as to insolvency
matters, as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance
15
be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller, and (b) (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the UCC of the applicable jurisdiction; (ii) the conveyance provided for in
Section 2 of this Agreement shall be deemed to be a grant by the Seller to the
Purchaser of a security interest in all of the Seller's right, title and
interest in and to the Mortgage Loans, and all amounts payable to the holder of
the Mortgage Loans in accordance with the terms thereof, and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation, all amounts, other
than investment earnings (other than investment earnings required by Section
3.19(a) of the Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls), from time to time held or invested in the applicable Master
Servicer's Collection Account, the Distribution Account or, if established, the
REO Account whether in the form of cash, instruments, securities or other
property; (iii) the assignment to the Trustee of the interest of the Purchaser
as contemplated by Section 1 of this Agreement shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Trustee or any of its agents, including, without limitation, the Custodian,
of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the UCC of the applicable jurisdiction; and (v)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from persons (other than the Trustee)
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the secured party for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement. The Seller does hereby consent to the filing by the Purchaser of
financing statements relating to the transactions contemplated hereby without
the signature of the Seller.
SECTION 9. Exchange Act Reporting. The Seller hereby agrees to deliver
to the Purchaser any disclosure information relating to any event, specifically
relating to the Seller (that arise from its role as sponsor with respect to the
Mortgage Loans), reasonably determined in good faith by the Purchaser as
required to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust Fund
(in formatting reasonably appropriate for inclusion in such form) insofar as
such disclosure is required under Item 1117 or 1119 of Regulation AB or Item
1.03 to Form 8-K. The Seller shall use reasonable efforts to deliver proposed
disclosure language relating to any event, specifically relating to the Seller
(that arise from its role as sponsor with respect to the Mortgage Loans),
described under Item 1117 or 1119 of Regulation AB or Item 1.03 to Form 8-K to
the Purchaser as soon as reasonably practicable after the Seller becomes aware
of such event and in no event more than two (2) business days following the
occurrence of such event if such event is reportable under Item 1.03 to Form
8-K. The obligation of the Seller to provide the above referenced disclosure
materials in any fiscal year of the Trust Fund will terminate upon the
Certificate Administrator's filing of a Form 15 with respect to the Trust Fund
as to that fiscal year in accordance with Section 8.16 of the Pooling and
Servicing Agreement or the reporting requirements with respect to the Trust Fund
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), have
otherwise automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section 9 will be used in the
preparation of reports on Form 8-K, Form 10-D or Form 10-K with respect to the
Trust Fund as required under Section 13 and/or Section 15(d) of the 1934 Act and
any applicable rules promulgated thereunder and as required under Regulation AB.
16
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent either
by certified mail (return receipt requested) or by courier service (proof of
delivery requested) to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto, or as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by 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 that 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 an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT AND
THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. 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 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
17
SECTION 16. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 18. 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 hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
DEXIA REAL ESTATE CAPITAL MARKETS
By: /S/ Xxxxx Xxxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxxx Xxxxx
Title: Managing Director
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /S/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
DEXIA MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
Dexia Real Estate Capital Markets
0000 XX Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Purchaser:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director of CMBS Securitizations
and to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
DEXIA MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Co-Lender Agreement). The Seller has validly
and effectively conveyed to the Purchaser all legal and beneficial interest in
and to each Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance (except for certain servicing rights as provided
in the Pooling and Servicing Agreement, any permitted subservicing agreements
and servicing rights purchase agreements pertaining thereto); provided that
recording and/or filing of various transfer documents are to be completed after
the Closing Date as contemplated hereby and by the Pooling and Servicing
Agreement. The sale of the Mortgage Loans to the Purchaser or its designee does
not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained. Each Mortgage Note is, or shall be as of the
Closing Date, properly endorsed to the Purchaser or its designee and each such
endorsement is, or shall be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in June 2008, without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent since the date of
origination of any Mortgage Loan, without giving effect to any applicable grace
period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing interest or penalties; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy, a "marked-up"
commitment binding upon the title insurer or escrow instructions binding on the
title
insurer and irrevocably obligating the title insurer to issue such title
insurance policy); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy, a "marked-up" commitment binding upon the title insurer
or escrow instructions binding on the title insurer and irrevocably obligating
the title insurer to issue such title insurance policy); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) if such Mortgage Loan constitutes a Crossed Loan, the
lien of the Mortgage for another Mortgage Loan contained in the same Crossed
Loan Group; (g) if the related Mortgaged Property consists of one or more units
in a condominium, the related condominium declaration; and (h) the rights of the
holder of any Non-Trust Loan that is part of a related Loan Combination to which
any such Mortgage Loan belongs. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any Non-Trust Loan that is part of a related Loan Combination to which any
such Mortgage Loan belongs, and except that a license may have been granted to
the related Mortgagor to exercise certain rights and perform certain obligations
of the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession of the related Mortgaged Property to collect
the rents or provides for rents to be paid directly to the related mortgagee, if
there is an event of default beyond applicable notice and grace periods. Except
for the holder of the related Non Trust Loan with respect to any Mortgage Loan
that is part of a Loan Combination, no person other than the related Mortgagor
owns any interest in any payments due under the related leases on which the
Mortgagor is the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any manner, (b) neither the
related Mortgaged Property nor any
material portion thereof has been released from the lien of such Mortgage and
(c) the related Mortgagor has not been released from its obligations under such
Mortgage, in whole or in material part. With respect to each Mortgage Loan,
since the later of (a) May 9, 2008 and (b) the closing date of such Mortgage
Loan, the Seller has not executed any written instrument that (i) impaired,
satisfied, canceled, subordinated or rescinded such Mortgage Loan, (ii) waived,
modified or altered any material term of such Mortgage Loan, (iii) released the
Mortgaged Property or any material portion thereof from the lien of the related
Mortgage, or (iv) released the related Mortgagor from its obligations under such
Mortgage Loan in whole or material part. For avoidance of doubt, the preceding
sentence does not relate to any release of escrows by the Seller or a servicer
on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
Value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge based upon surveys and/or the title
insurance policy referred to in representation 8 below, as of the date hereof,
(a) none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy, a "marked up" commitment binding on the
title insurer or escrow instructions binding on the title insurer irrevocably
obligating the title insurer to issue the Title Policy) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the Permitted Encumbrances, except that in the case of
a Mortgage Loan as to which the related Mortgaged Property is made up of more
than one parcel of property, each of which is secured by a separate Mortgage,
such Mortgage (and therefore the related Title Policy) may be in an amount less
than the original principal amount of the Mortgage Loan, but is not less than
the allocated amount of subject parcel constituting a portion of the related
Mortgaged Property. Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee as
sole
insured (except with respect to the rights of the holder of any Non-Trust Loan
that is part of a related Loan Combination to which any such Mortgage Loan
belongs) without the consent of or notice to the insurer. Such Title Policy
contains no material exclusion for whether, or it affirmatively insures (unless
the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. 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, repair or
other matters with respect to the related Mortgaged Property) documented as part
of the Mortgage Loan documents and the rights to which are transferred to the
Trustee) and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, judicial or non-judicial foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located). None of the Mortgage Loan documents contains any provision
that expressly excuses the related Mortgagor from obtaining and maintaining
insurance coverage for acts of terrorism.
11. 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 or will become 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.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) 12 months prior to the date hereof, (c) a copy of each such
Environmental Report has been delivered to the Purchaser, and (d) either: (i) no
such Environmental Report, if any, reveals that as of the date of the report
there is a material violation of applicable environmental laws with respect to
any known 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) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage 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 conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. 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 such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a deductible or the
deductible amount is held in escrow and all premiums have been paid in full.
Each Mortgagor represents and warrants in the related Mortgage Loan documents
that except as set forth in certain environmental reports and to its knowledge
it has not used, caused or permitted to exist and 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 affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
out-of-pocket expenses and claims of any kind whatsoever (including attorneys'
fees and costs) paid, incurred or suffered by or asserted against, any such
party resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the
legal, valid and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or one form of action law or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying applicable
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i), (ii) and (iii)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils 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 full
insurable 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
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least 12 months (or a specified dollar amount which is reasonably estimated
to cover no less than 12 months of rental income), unless such Mortgaged
Property constitutes a manufactured housing community. 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), and flood insurance was available, a flood insurance policy
is in effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of: (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable federal
flood insurance program. Each Mortgaged Property located in California or in
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than 20% of the
replacement value of the related improvements, calculated using methodology
acceptable to a reasonably prudent commercial mortgage lender with respect to
similar properties in the same area or earthquake zone. Each Mortgaged Property
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas is insured by
windstorm insurance in an amount at least equal to the lesser of (i) the
outstanding principal balance of the related Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located
on such Mortgaged Property (less physical depreciation). 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 at least 10 days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. 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 or financial
strength rating from Fitch or S&P of not less than A-minus (or the equivalent),
or from Xxxxx'x of not less than A3 (or the equivalent), or from DBRS of not
less than A(low) (or the equivalent), or from A.M. Best Company of not less than
"A-minus: V" (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide 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 all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor 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 Mortgagor 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 representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or
repaired to the full extent of the use or structure at the time of such casualty
or law and ordinance coverage has been obtained in an amount that would be
required by prudent commercial mortgage lenders (or, if the related Mortgaged
Property may not be restored or repaired to the full extent of the use or
structure at the time of such casualty and law and ordinance coverage has not
been obtained in an amount that would be required by prudent commercial mortgage
lenders, such fact does not materially and adversely affect the Value of the
related Mortgaged Property).
18. Material Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
promptly submitted for recordation; such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related Mortgage; and, if
such Ground Lease has been recorded, there has been no material change in
the terms of such Ground Lease since its recordation, with the exception of
material changes reflected in written instruments which are a part of the
related Mortgage File; and if required by such Ground Lease, the lessor
thereunder has received notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by 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 Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) 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
notice of any such default, before the lessor thereunder may terminate such
Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than 20 years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has a term, which
together with extension options that are exercisable by the lender upon its
taking possession of the Mortgagor's leasehold interest would (if such
options are exercised) cause the term of such Ground Lease to extend not
less than 20 years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the mortgagee
under such Mortgage Loan fails to cure a default of the lessee that is
susceptible to cure by the mortgagee under such Ground Lease following
notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) 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 or a trustee appointed or consented to 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 the Mortgage Loan
together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Accordingly,
each Mortgage Loan is directly secured by an interest in real property (within
the meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and
either (1) the fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount of such
Mortgage Loan at the time the Mortgage Loan was (a) originated or modified
(within the meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b)
contributed to the Trust Fund, or (2) substantially all of the proceeds of such
Mortgage Loan were used to acquire, improve or protect an interest in real
property and such interest in real property was the only security for the
Mortgage Loan at the time such Mortgage Loan was originated or modified. For
purposes of the previous sentence, the fair market value of the referenced
interest in real property shall first be reduced by (1) the amount of any lien
on such interest in real property that is senior to the Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is in
parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than (a) amounts paid by the
tenant as specifically provided under a related lease or by the property manager
or (b) application and commitment fees, escrow funds, points and reimbursements
for fees and expenses incurred in connection with the origination and funding of
the Mortgage Loan), for the payment of any amount required by such Mortgage
Loan, except for interest accruing from the date of origination of such Mortgage
Loan or the date of disbursement of the Mortgage Loan proceeds, whichever is
later, to the date which preceded by 30 days the first due date under the
related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
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, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides 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.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
Value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. Except with respect to another Mortgage Loan
(which will also be an asset of the Trust Fund) cross-collateralized with a
Mortgage Loan, none of the Mortgage Loans permits the related Mortgaged Property
to be encumbered by any other mortgage lien junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. To the Seller's knowledge, except as indicated in the
preceding sentence and 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 related Mortgage Loan documents require the Mortgagor under each
Mortgage Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including any applicable Rating Agency fees, or would
permit the related mortgagee to withhold such consent if such costs and expenses
are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or
equal to the lien of the related Mortgage and that is not bonded or escrowed for
or covered by title insurance.
25. Compliance. Other than any default interest or any late charges,
each Mortgage Loan (other than ARD Loans after their respective Anticipated
Repayment Dates) complied with, or was exempt from, all applicable usury laws in
effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchisee
or operator 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, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any Crossed
Loan Group, the sum of the amounts of the respective Mortgages recorded on the
related Mortgaged Properties with respect to such Mortgage Loans is at least
equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Loan Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a) (16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property or any other customary
commercial transaction and are not part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate, late charge or prepayment premium.
32. Inspection. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding 12
months.
33. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies or other publicly traded interests,
issuance of non-controlling new equity interests, transfers to an affiliate
meeting the requirements of the Mortgage Loan, transfers among existing direct
or indirect members, partners or shareholders in the Mortgagor, transfers among
affiliated Mortgagors with respect to cross-collateralized Mortgage Loans or
multi-property Mortgage Loans, transfers among co-Mortgagors, transfers of
worn-out or obsolete furniture, furnishings and equipment or transfers of a
similar nature to the foregoing meeting the requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $10,000,000 or more was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that during the term of the
Mortgage Loan it may only own and operate one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents generally further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor with respect to a Mortgage Loan
that is part of the same Crossed Loan Group as the subject
Mortgage Loan), that it holds itself out as a legal entity (separate and apart
from any other person), that it will not guarantee or assume the debts of any
other person that it will not commingle assets with affiliates (other than
co-obligors under the Mortgage Loan documents), and that it will not transact
business with affiliates (except to the extent required by any cash management
provisions of the related Mortgage Loan documents) except on an arm's-length
basis.
36. Whole Loan. Each Mortgage Loan is a whole loan (which term
includes any Mortgage Loan that is part of a Loan Combination, but does not
include any related Non-Trust Loan) and not a participation interest in a
mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing of a UCC
financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan provides
for interest only payments prior to its Stated Maturity Date or, in the case of
an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan begins
to amortize prior to its Stated Maturity Date or, in the case of an ARD Loan,
prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal or affiliate
of such Mortgagor or an entity controlled by a principal or affiliate of such
Mortgagor, for damages, liabilities, expenses or claims sustained in connection
with the Mortgagor's fraud, material, intentional misrepresentation, material
intentional physical waste or misappropriation of any tenant security deposits
(in some cases, only after foreclosure or an action in respect thereof), rent
(in some cases, only after an event of default), insurance proceeds or
condemnation awards. The related Mortgage Loan documents contain provisions
pursuant to which the related Mortgagor, a principal or affiliate of such
Mortgagor or an entity controlled by a principal or affiliate of such Mortgagor,
has agreed to indemnify the mortgagee for damages resulting from violations of
any applicable environmental laws relating to hazardous material at the related
Mortgaged Property.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in whole
or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, together with such other
information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than 15 days from the applicable Due Date or five (5)
days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then 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; or
(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 to the extent that 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.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained 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 letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
EXCEPTIONS TO REPRESENTATION 4: LIEN; VALID ASSIGNMENT.
010-2206 Holiday Inn/Fairfield Inn - The hotel franchisor has a right
Sebastopol, CA of first refusal to purchase the
Mortgaged Property, in accordance
with certain terms and conditions
described in the comfort letter,
in the event the related
Mortgagor elects to sell the
related Mortgaged Property.
010-2255 FBI - Anchorage, AK The related ground lessor has a
right of first refusal to
purchase the Mortgagor's
leasehold interest in the
Mortgaged Property, in accordance
with certain terms and conditions
contained in the related ground
lease, in the event the Mortgagor
elects to sell its leasehold
interest in the related Mortgaged
Property.
Additionally, the related ground
lessor has the right to purchase
the related Mortgage Loan in the
event Mortgagee accelerates the
Mortgage Loan or otherwise
institutes foreclosure
proceedings to take possession of
the related Mortgaged Property by
paying all outstanding amounts
then due under the Mortgage Loan
documents.
010-2218 Powers Portfolio - TN The tenant at one of the three
(010-2218.02) Mortgaged Properties in the
Powers Portfolio, referred to as
the Chick-Fil-A property, has a
right of first refusal to
purchase its premises at the
related Mortgaged Property, in
accordance with certain terms and
conditions contained in such
tenant's lease, in the event the
Mortgagor elects to sell the
related Mortgaged Property.
010-2218 Powers Portfolio - TN The tenant at one of the three
(010-2218.03) Mortgaged Properties in the
Powers Portfolio, referred to as
the First Tennessee Bank
property, has the option to
purchase the First Tennessee Bank
property upon terms and
conditions set forth in such
tenant's lease, at a price of
$950,000.
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
010-2245 Landmark Towers A tenant at the related Mortgaged
Property has a right of first
refusal to purchase the 20th
floor of the Mortgaged Property,
in accordance with certain terms
and conditions contained in such
tenant's lease, in the event the
Mortgagor elects to sell the 20th
floor as a separate parcel.
EXCEPTIONS TO REPRESENTATION 6: MORTGAGE STATUS; WAIVERS AND
MODIFICATIONS.
010-2206 Holiday Inn / Fairfield Inn The requirement in the related
- Sebastopol, CA Mortgage Loan documents to
provide an assignment of an
equipment lease (under which the
related Mortgage Borrower is the
lessee) has been waived, and the
equipment lease has been
terminated pursuant to, among
other things, a termination
agreement.
010-2201 Sportsman's Warehouse The related Mortgage Loan
documents were amended after May
9, 2008 to, among other things,
remove the provision respecting
permitted mezzanine pledges.
010-2101 Village at Old Trace With respect to each of the loans
listed to the left, the related
010-2153 Xxxxxxxxxxx Commons Mortgage Loan documents and the
organizational documents of the
related Mortgagor were amended
after May 9, 2008, to, among
other things, transfer the
membership interests in the
limited liability companies of
two of the tenants in common
comprising 5.8% of the related
current Mortgagor to a trust for
estate planning purposes.
EXCEPTIONS TO REPRESENTATION 10: MORTGAGE PROVISIONS.
All All No representation is made as to
the existence of any provisions
in the Mortgage Loan documents
that would require the related
Mortgagors to maintain insurance
covering acts of terrorism that
are not "certified acts of
terrorism" as defined in the
Federal Terrorism Risk Insurance
Act of 2002, the Federal
Terrorism Risk Insurance
Extension Act of 2005, or the
Federal Terrorism Risk Insurance
Program Reauthorization Act of
2007, as applicable.
EXCEPTIONS TO REPRESENTATION 14: INSURANCE.
All All No representation is made as to
whether the related Mortgagors
maintain insurance covering
terrorist acts that are not
"certified acts of terrorism" as
defined in
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
the Federal Terrorism Risk
Insurance Act of 2002, the
Federal Terrorism Risk Insurance
Extension Act of 2005, or the
Federal Terrorism Risk Insurance
Program Reauthorization Act of
2007, as applicable.
All All Certain of the insurance
certificates for the related
liability insurance policies may
provide that in the event such
related insurance policies are
terminated or cancelled, the
insurer shall endeavor to provide
Mortgagee notice, but do not
expressly indicate that no
cancellation or termination
occurs until notice is given.
All All Some of the related Mortgaged
Properties are covered under a
blanket policy.
010-2175 Commerce Corner Certain of the insurance
certificates for the related
010-2227 Roan Centre property insurance policies may
provide that in the event such
010-2206 Holiday Inn/Fairfield Inn - related insurance policies are
Sebastopol, CA terminated or cancelled, the
insurer shall endeavor to provide
010-2233 Xxxxx Parkway Plaza Mortgagee notice, but do not
expressly indicate that no
cancellation or termination
occurs until notice is given.
010-2218 Powers Portfolio - TN Rent loss insurance was waived
(010-2218.02) for certain portions of the
(010-2218.03) Mortgaged Property, referred to
as the Chick-Fil-A property and
the First Tennessee Bank
property, as the tenants
occupying such portions of the
Mortgaged Property are subject to
leases which do not provide for
any rent abatement following a
casualty.
010-2218 Powers Portfolio - TN The related Mortgage Loan
(010-2218.02) documents do not require that
(010-2218.03) Mortgagor maintain fire and
extended perils/hazard/
casualty/all-risk property
insurance or flood or terrorism
coverage for certain portions of
the Mortgaged Property, referred
to as the Chick-Fil-A property
and the First Tennessee Bank
property, as Mortgagee's interest
in such portions of the Mortgaged
Property consists solely of
Mortgagor's fee interest in the
related real property, and does
not include any of the
improvements located on such
portions of the Mortgaged
Property.
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
EXCEPTIONS TO REPRESENTATION 18: LEASEHOLD ESTATE.
010-2194 Route 66 Center As relates to Representation
18(iii), landlord's approval is
010-2255 FBI-Anchorage, AK required for assignment of the
tenant's interest in the ground
lease; while the landlord has
agreed, either in the ground
lease or an estoppel, that the
holder of a leasehold mortgage
may acquire the related Mortgaged
Property by way of foreclosure or
deed in lieu, each subsequent
transfer requires landlord's
approval.
010-2194 Route 66 Center As relates to Representation
18(x), landlord's approval is
010-2255 FBI-Anchorage, AK required for subleases.
EXCEPTIONS TO REPRESENTATION 23: OTHER MORTGAGE LIENS.
010-2194 Route 66 Center One of the tenants of the related
Mortgage Borrower has executed a
deed of trust in favor of its
lender, in the amount of
$625,000, encumbering such
tenant's building and its
leasehold interest in the related
Mortgaged Property.
EXCEPTIONS TO REPRESENTATION 28: RELEASES OF MORTGAGED PROPERTY.
010-2218 Powers Portfolio, TN The related Mortgage Loan
documents permit the partial
release of any of the three
Mortgaged Properties in the
Powers Portfolio upon the
satisfaction of certain terms and
conditions contained in the
related Mortgage Loan documents,
including, among other things,
effecting a partial defeasance of
the debt in the amount of (i)
55.16% multiplied by 125% of the
then outstanding balance of the
related Mortgage Loan for the
Mortgaged Property referred to as
Advance Auto Parts, (ii) 20%
multiplied by 125% of the then
outstanding balance of the
related Mortgage Loan for the
Mortgaged Property referred to as
First Tennessee Bank, and (iii)
24.84% multiplied by 125% of the
then outstanding balance of the
related Mortgage Loan for the
Mortgaged Property referred to as
Chick-Fil-A.
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
010-1995 Mini Warehouses of Georgia The related Mortgage Loan
documents permit the partial
release of any of the three
Mortgaged Properties in the
Mini-Warehouses of Georgia
portfolio upon the satisfaction
of certain terms and conditions
contained in the related Mortgage
Loan documents, including, among
other things, effecting a partial
prepayment of the debt in the
amount of 120% of the allocated
loan amount (as decreased on
account of principal payments in
accordance with the related
Mortgage Loan documents) of the
Mortgaged Property being
released.
010-2201 Sportsman's Warehouse With respect to the loans listed
to the left, the related Mortgage
010-2174 Beehive Self Storage Loan documents permit the partial
release of a portion of the
related Mortgaged Property,
without prepayment of the related
Mortgage Loan, upon the
satisfaction of certain terms and
conditions contained in the
related Mortgage Loan documents.
EXCEPTIONS TO REPRESENTATION 34: DUE ON SALE.
All All The Mortgage Loan documents
permit, with respect to Mortgage
Loans to tenant-in-common
borrowers or that permit
tenant-in-common borrowers,
transfers of interests in the
related Mortgaged Property to new
tenant-in-common borrowers and/or
transfers between tenant-common
borrowers, in each case
satisfying the requirements of
the related Mortgage Loan
documents.
EXCEPTIONS TO REPRESENTATION 43: RECOURSE.
010-2245 Landmark Towers With respect to each of the loans
010-1925 Stony Brook South listed to the left, the related
010-2135 Park Creek Apartments Mortgage Loan documents provide
010-2101 Village at Old Trace for recourse for the items listed
010-2242 Houston Levee Galleria in the representation to DBSI
010-2092 Haverford Place Apartments Housing, Inc., which is not
000-0000 0xx Xxxxxx Quad Retail affiliated with or a principal of
010-2166 One Executive the related current Mortgagor or
010-2159 Stone Oak Crossing II with various (or any) of the
000-0000 Xxxxx Xxxxxx Commons tenants in common, comprising,
collectively, the related current
Mortgagor.
ANNEX A-1 ID # MORTGAGE LOAN EXCEPTION
-------------- --------------------------- ---------------------------------
EXCEPTIONS TO REPRESENTATION 46: ESCROWS.
010-2193 Willowlake Retail Center A $43,000 debt service escrow is
maintained for the benefit of
Mortgagor by a third party title
company, and such escrow is not
held by Mortgagor.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
[NONE.]
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
[NONE.]
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
XXXX 0000-X0: MORTGAGE LOAN SCHEDULE
PROPERTY
LOAN # LOAN GROUP PROPERTY NAME LOAN / PROPERTY ORIGINATOR TYPE
-------------------------------------------------------------------------------------------------------------------------
8 1 Landmark Towers Loan Dexia Office
11 1 Stony Brook South Loan Dexia Retail
12 1 Sportsman's Warehouse Loan Dexia Retail
14 2a Park Creek Apartments Loan Dexia Multifamily
20 1 Village at Old Trace Loan Dexia Retail
23 1 Houston Levee Galleria Loan Dexia Retail
24 1 Commerce Corner Loan Dexia Retail
26 2a Haverford Place Apartments Loan Dexia Multifamily
28 1 2nd Street Quad Loan Dexia Retail
29 1 Roan Centre Loan Dexia Retail
30 1 Mill Towne Center Loan Dexia Mixed Use
32 1 Comfort Inn & Suites Oceanfront - Virginia Beach, VA Loan Dexia Hospitality
38 1 FBI - Anchorage, AK Loan Dexia Xxxxxx
00 0 Xxxxxxx Xxx/Xxxxxxxxx Xxx - Xxxxxxxxxx, XX Loan Dexia Hospitality
41 1 Shoppes At Baytown Loan Dexia Retail
42 1 One Executive Loan Dexia Office
43 1 Xxxxxxx University Loan Dexia Office
44 1 Stone Oak Crossing II Loan Dexia Retail
51 1 Mini Storage Depot Portfolio Loan Dexia Self Storage
51.01 1 Mini Storage Depot - Michigan City, IN Property Dexia Self Storage
51.02 1 Mini Storage Depot - South Bend, IN Property Dexia Self Storage
52 0 Xxxxxxx Xxx - Xxxxxx Xxxxx, XX Loan Dexia Hospitality
55 1 7461 Xxxxxxxxx Building Loan Dexia Xxxxxx
00 0 Xxxxx 00 Xxxxxx Xxxx Xxxxx Retail
60 1 4400 Shelbyville Road Loan Dexia Retail
64 0 Xxxxx Xxxxxxx Xxxxx Loan Dexia Industrial
67 1 2910 Xxxxxx Road Loan Dexia Office
68 1 Powers Portfolio-Tennessee Loan Dexia Various
68.01 1 Advance Auto Parts Property Dexia Retail
68.02 1 Chick-fil-A Property Dexia Land
68.03 1 First Tennessee Bank Property Dexia Land
69 0 Xxxxx Xxxxxx Xxxxxxx I & II Loan Dexia Retail
70 1 City Center Business Park Loan Dexia Industrial
71 1 DEA - Anchorage, AK Loan Dexia Office
72 1 Beehive Self Storage Loan Dexia Self Storage
74 2a University Inn Apartments Loan Dexia Multifamily
75 1 Mini Warehouses of Georgia Loan Dexia Self Storage
79 1 Willowlake Retail Center Loan Dexia Retail
80 1 Applewood Plaza Loan Dexia Retail
86 1 Starbucks and Bajio Building Loan Dexia Retail
89 2a Timbers Apartments Loan Dexia Multifamily
LOAN # STREET ADDRESS CITY COUNTY
------------------------------------------------------------------------------------------------------------------------------------
8 000 Xx. Xxxxx Xxxxxx Xx. Xxxx Xxxxxx
11 3500-3630 South Hurstbourne Parkway Louisville Jefferson
12 6231 & 0000 Xxxxxxxxx Xxxxx Chattanooga Xxxxxxxx
14 0000 Xxxx Xxxxx Xxxxx Xxxxxxxxxxx Xxxx
20 3405 Dallas Highway Southwest Xxxxxxxx Xxxx
23 3660, 3670 & 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxxxxx Xxxxxx
24 0000-0000 Xxxxx Xxxxxxxx Xxxxxxxxx and 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx Commerce Los Angeles
26 100, 101 & 000 Xxxxxxx Xxxx, 000, 101, 102, 103, 106, 108, 110, 111 & 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx Xxxxx
101, 102, 103 & 000 Xxxxxxxx Xxxx, and 100 & 000 Xxxxxxx Xxxx,
000, 102 & 104 New Haven Path
28 230, 306, 320 & 000 0xx Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxxx
29 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
00 000-000 East Baseline Road Tempe Maricopa
32 0000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxxxxx Beach
City
38 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx
40 0000 Xxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx Sonoma
41 0000-0000 Xxxxx Xxxx Xxxxxxx Xxxxxx
42 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx Bernalillo
43 45150 Xxxxxxx Xxxxxx Parkway Ashburn Loudoun
44 00000 Xxxxx Xxx Xxxxxxx San Antonio Bexar
51 Various Various Various
51.01 000 Xxxx XX Xxxxxxx 00 Xxxxxxxx Xxxx XxXxxxx
51.02 0000 Xxxxx Xxxx Xxxxx Xxxx St. Xxxxxx
52 000 Xxxxx Xxxxxx Xxxxxx Xxxxx Burnet
55 7461 Xxxxxxxxx Road San Antonio Bexar
57 601 & 000 Xxxx Xxxxx 00 and 000-000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxx Xxxxxxx
60 0000-0000 Xxxxxxxxxxx Xxxx Louisville Jefferson
64 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Salt Lake
67 2910 Xxxxxx Road Decatur DeKalb
68 Various Various Davidson
68.01 0000 Xxxxxx Xxxx Xxxxxxxxx Davidson
68.02 000 Xxx Xxxxxxx Dirt Road Hermitage Davidson
68.03 0000 Xxxxxxxxxxxx Xxxx Nashville Davidson
69 1111-1147 and 0000-0000 Xxxxxx Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxxx
70 0000 Xxxx 00xx Xxxxxx Arvada Jefferson
71 1630 East Tudor Road Anchorage Anchorage
72 0000 Xxxxx Xxxx Xxxxxx Tooele Tooele
74 000 Xxxxx Xxxxx Xxxxxx and 000 Xxxx Xxxxxx Xxxxxx Xxxx Portage
75 0000 Xxxxxxxx Xxxxxx, 000 Xxxxxxx Xxxx and 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx
79 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxx
80 9505 Q Street Omaha Xxxxxxx
86 1573 & 1575 West 9000 South West Jordan Salt Lake
89 2114 East Xxxxxxxx Avenue Longview Xxxxx
CUT-OFF DATE ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST
LOAN # STATE ZIP CODE BALANCE ($) BALANCE ($) SERVICE ($) SERVICE ($) RATE %
------------------------------------------------------------------------------------------------------------
8 MN 55102 16,000,000 16,000,000 93,953.70 1,127,444.40 6.9500
11 XX 00000 14,100,000 14,100,000 75,291.39 903,496.68 6.3200
12 TN 37421 14,040,958 14,100,000 89,307.13 1,071,685.56 6.5200
00 XX 00000 12,100,000 12,100,000 68,701.11 824,413.32 6.7200
00 XX 00000 9,785,000 9,785,000 52,332.76 627,993.12 6.3300
00 XX 00000 9,300,000 9,300,000 53,510.52 642,126.24 6.8100
00 XX 00000 8,900,000 8,900,000 55,670.03 668,040.36 6.4000
26 XX 00000 8,600,000 8,600,000 46,503.70 558,044.40 6.4000
28 XX 00000 8,450,000 8,450,000 47,763.04 573,156.48 6.6900
00 XX 00000 8,212,022 8,250,000 53,838.79 646,065.48 6.8100
00 XX 00000 7,968,406 8,000,000 52,047.48 624,569.76 6.7800
32 VA 23451 7,867,585 8,000,000 70,102.40 841,228.80 6.5000
00 XX 00000 6,934,488 6,950,000 44,985.21 539,822.52 6.7300
00 XX 00000 6,479,488 6,500,000 42,983.06 515,796.72 6.9400
41 XX 00000 6,350,000 6,350,000 39,969.42 479,633.04 6.4600
00 XX 00000 6,300,000 6,300,000 35,290.94 423,491.28 6.6300
43 VA 20147 6,273,265 6,300,000 39,654.70 475,856.40 6.4600
44 XX 00000 6,150,000 6,150,000 34,762.45 417,149.40 6.6900
51 IN Various 4,974,092 5,000,000 30,948.64 371,383.68 6.3000
51.01 IN 46360 2,842,338 2,857,143
51.02 IN 46628 2,131,754 2,142,857
52 XX 00000 4,967,513 5,000,000 33,448.59 401,383.08 6.4000
55 XX 00000 4,500,000 4,500,000 29,157.01 349,884.12 6.7400
00 XX 00000 & 91741 4,078,367 4,100,000 25,164.46 301,973.52 6.2200
60 XX 00000 3,958,392 3,975,000 25,203.18 302,438.16 6.5300
64 UT 84070 3,482,435 3,500,000 21,984.46 263,813.52 6.4400
00 XX 00000 3,267,000 3,267,000 20,478.08 245,736.96 6.4200
68 TN Various 3,200,000 3,200,000 19,869.75 238,437.00 6.3300
68.01 TN 37221 1,765,120 1,765,120
68.02 TN 37076 794,880 794,880
68.03 TN 37217 640,000 640,000
69 XX 00000 3,123,000 3,123,000 17,573.38 210,880.56 6.6600
70 CO 80002 3,050,000 3,050,000 19,137.88 229,654.56 6.4300
00 XX 00000 3,018,248 3,025,000 19,579.89 234,958.68 6.7300
72 UT 84074 2,766,712 2,800,000 21,387.61 256,651.32 6.7100
74 XX 00000 2,653,121 2,680,000 18,212.95 218,555.40 6.5700
00 XX 00000 2,600,912 2,630,000 15,903.70 190,844.40 6.0800
00 XX 00000 2,310,000 2,310,000 14,600.77 175,209.24 6.5000
00 XX 00000 2,200,000 2,200,000 14,415.70 172,988.40 6.8500
86 UT 84088 1,620,000 1,620,000 10,218.20 122,618.40 6.4800
89 XX 00000 1,300,615 1,320,000 8,683.17 104,198.04 6.2200
NET
PRIMARY MASTER TRUSTEE AND SUB SERVICIN ADMIN. MORTGAGE
LOAN # SERVICING FEE SERVICING FEE PAYING AGENT FEE FEE RATE FEE % RATE % ACCRUAL TYPE
-----------------------------------------------------------------------------------------------------------
8 0.010 0.010 0.0022 0.0222 6.92780 Actual/360
11 0.010 0.010 0.0022 0.0222 6.29780 Actual/360
12 0.010 0.010 0.0022 0.0222 6.49780 Actual/360
14 0.010 0.010 0.0022 0.0222 6.69780 Actual/360
20 0.010 0.010 0.0022 0.0222 6.30780 Actual/360
23 0.010 0.010 0.0022 0.0222 6.78780 Actual/360
24 0.010 0.010 0.0022 0.0222 6.37780 Actual/360
26 0.010 0.010 0.0022 0.0222 6.37780 Actual/360
28 0.010 0.010 0.0022 0.0222 6.66780 Actual/360
29 0.010 0.0022 0.0600 0.0722 6.73780 Actual/360
30 0.010 0.010 0.0022 0.0222 6.75780 Actual/360
32 0.010 0.0022 0.0600 0.0722 6.42780 Actual/360
38 0.010 0.010 0.0022 0.0222 6.70780 Actual/360
40 0.010 0.010 0.0022 0.0222 6.91780 Actual/360
41 0.010 0.010 0.0022 0.0222 6.43780 Actual/360
42 0.010 0.010 0.0022 0.0222 6.60780 Actual/360
43 0.010 0.0022 0.0600 0.0722 6.38780 Actual/360
44 0.010 0.010 0.0022 0.0222 6.66780 Actual/360
51 0.010 0.010 0.0022 0.0222 6.27780 Actual/360
51.01
51.02
52 0.010 0.010 0.0022 0.0222 6.37780 Actual/360
55 0.010 0.010 0.0022 0.0222 6.71780 Actual/360
57 0.010 0.010 0.0022 0.0222 6.19780 Actual/360
60 0.010 0.0022 0.0800 0.0922 6.43780 Actual/360
64 0.010 0.010 0.0022 0.0222 6.41780 Actual/360
67 0.010 0.010 0.0022 0.0222 6.39780 Actual/360
68 0.010 0.010 0.0022 0.0222 6.30780 Actual/360
68.01
68.02
68.03
69 0.010 0.010 0.0022 0.0222 6.63780 Actual/360
70 0.010 0.010 0.0022 0.0222 6.40780 Actual/360
71 0.010 0.010 0.0022 0.0222 6.70780 Actual/360
72 0.010 0.010 0.0022 0.0222 6.68780 Actual/360
74 0.010 0.010 0.0022 0.0222 6.54780 Actual/360
75 0.010 0.0022 0.0400 0.0522 6.02780 Actual/360
79 0.010 0.010 0.0022 0.0222 6.47780 Actual/360
80 0.010 0.010 0.0022 0.0222 6.82780 Actual/360
86 0.010 0.010 0.0022 0.0222 6.45780 Actual/360
89 0.010 0.010 0.0022 0.0222 6.19780 Actual/360
MONTHLY
PAYMENT MATURITY/ AMORT
LOAN # TERM DATE REM. TERM ARD DATE TERM REM. AMORT TITLE TYPE ARD LOAN
--------------------------------------------------------------------------------------------
8 120 11 115 1/11/2018 0 0 Fee
11 120 11 112 10/11/2017 0 0 Fee
12 120 11 115 1/11/2018 360 355 Fee
14 120 11 111 9/11/2017 0 0 Fee
20 120 11 112 10/11/2017 0 0 Fee
23 120 11 116 2/11/2018 0 0 Fee
24 120 11 113 11/11/2017 360 360 Fee
26 120 11 111 9/11/2017 0 0 Fee
28 120 11 113 11/11/2017 0 0 Fee
29 120 11 114 12/11/2017 360 354 Fee
30 120 11 115 1/11/2018 360 355 Fee
32 180 11 175 1/11/2023 180 175 Fee
38 120 11 117 3/11/2018 360 357 Leasehold
40 120 11 116 2/11/2018 360 356 Fee
41 120 11 116 2/11/2018 360 360 Fee
42 120 11 113 11/11/2017 0 0 Fee
43 120 11 115 1/11/2018 360 355 Fee
44 120 11 112 10/11/2017 0 0 Fee
51 84 11 78 12/11/2014 360 354 Fee
51.01 Fee
51.02 Fee
52 120 11 115 1/11/2018 300 295 Fee
55 120 11 115 1/11/2018 360 360 Fee
57 120 11 114 12/11/2017 360 354 Leasehold
60 120 11 115 1/11/2018 360 355 Fee
64 120 11 114 12/11/2017 360 354 Fee
67 120 11 109 7/11/2017 360 360 Fee
68 120 11 115 1/11/2018 360 360 Fee
68.01 Fee
68.02 Fee
68.03 Fee
69 120 11 114 12/11/2017 0 0 Fee
70 120 11 116 2/11/2018 360 360 Fee
71 120 11 117 3/11/2018 360 357 Fee
72 240 11 234 12/11/2027 240 234 Fee
74 120 11 112 10/11/2017 300 292 Fee
75 120 11 108 6/11/2017 360 348 Fee
79 120 11 114 12/11/2017 360 360 Fee
80 120 11 114 12/11/2017 360 360 Fee
86 120 11 115 1/11/2018 360 360 Fee
89 120 11 109 7/11/2017 300 289 Fee
PARTIAL
ARD ENVIRONMENTAL CROSS CROSS DEFEASANCE LETTER OF
LOAN # STEP UP INSURANCE DEFAULTED COLLATERALIZED ALLOWED CREDIT
--------------------------------------------------------------------------------------
8 No
11 No
12 No Yes
14 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 No
29 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 Xx
51.01 No
51.02 Xx
00 Xx
00 Xx
00 Xx
00 Xx
64 No
67 No
68 No Yes Yes
68.01 No
68.02 No
68.03 Xx
00 Xx
00 Xx
00 Xx
00 Xx
74 No Yes
75 Xx
00 Xx
00 Xx
00 Xx
00 Xx
UPFRONT UPFRONT UPFRONT UPFRONT
LOCKBOX HOLDBACK ENGINEERING CAPEX TI/LC RE TAX
LOAN # TYPE AMOUNT RESERVE ($) RESERVE ($) RESERVE ($) RESERVE ($)
-----------------------------------------------------------------------------------------------------------
8 128,750 243,097
11 155,558
12
14 30,144
20 10,433
23 16,048
24 106,950 20,013
26 81,294
28 23,747
29 61,820 12,979
30 56,912
32 20,359
38 Hard 83,657
40
41 450,000 15,086
42 85,116
43 None at Closing, Springing Hard 19,027
44 130,777
51 19,539
51.01
51.02
52 4,388
55 Hard 342,359 6,797
57 6,073
60 4,315
64 Soft at Closing, Springing Hard 63,375 19,048 100,000 6,534
67 100,000 200,000 32,711
68
68.01
68.02
68.03
69 48,462
70 12,500 150,000
71 Hard 39,389
72 5,213
74 28,908
75 18,057
79 50,152 1,435
80 16,668
86 4,391
89 10,413
UPFRONT UPFRONT MONTHLY MONTHLY MONTHLY MONTHLY
INS. OTHER CAPEX CAPEX TI/LC TI/LC
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($)
--------------------------------------------------------------------------------------------------
8
11
12 1,100,000 1,972 70,985 6,573 225,000
14
20 32,020
23 4,309
24 17,227 143,050 2,971 106,950
26
28
29 26,161 2,552 3,572 150,000
30 5,203 1,036 24,862 4,144 150,000
32 66,579 50,000 11,165 400,000
38 19,707 10,000 1,151
40 30,580 1,375,000 4,266
41 12,833 916 450,000
42 567,900
43 7,476 10,000 679 1,406 450,000
44
51 7,505 1,999
51.01
51.02
52 6,088 5,922
55 1,492 327,719
57 3,280 60,642 542 19,497
60 8,147 111,480 286 953 68,000
64 9,772 19,048 100,000
67 4,672
68 95,000
68.01
68.02
68.03
69 121,910
70 3,412 1,094 3,668
71 7,864 10,000 232 8,341
72 3,302 594
74 3,247 35,000 2,975
75 1,404 1,173
79 492 43,000 223
80 4,020 14,850 289 10,395 1,540 55,440
86 846 63 2,250 417
89 2,295 982 50,000
MONTHLY MONTHLY MONTHLY
RE TAX INS. OTHER XXXXX XXXXX
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) TO LATE TO DEFAULT
-----------------------------------------------------------------------
8 60,774 0 0
11 14,142 0 0
12 13,127 0 0
14 5,582 0 0
20 5,217 0 0
23 16,048 0 0
24 6,671 1,723 0 0
26 8,129 0 0
28 23,747 0 0
29 12,980 2,012 0 0
30 14,228 2,602 0 0
32 6,786 6,075 87400 0 0
38 9,295 1,585 0 0
40 6,824 3,058 0 0
41 7,543 6,417 0 0
42 10,640 0 0
43 6,342 934 0 0
44 13,078 0 0
51 9,770 1,072 0 0
51.01
51.02
52 4,388 1,684 0 0
55 6,797 746 0 0
57 1,518 820 0 0
60 2,157 679 0 0
64 3,267 888 0 0
67 2,183 513 0 0
68 0 0
68.01
68.02
68.03
69 12,116 0 0
70 5,694 1,706 0 0
71 4,377 669 0 0
72 2,607 330 0 0
74 7,227 1,082 0 0
75 4,010 936 0 0
79 1,529 262 0 0
80 2,778 466 0 0
86 1,464 282 0 0
89 491 568 0 0
