EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of June 1, 2008, between Barclays Capital Real Estate
Inc., as seller (the "Seller" or "BCRE"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of: (i) the
Mortgage Loans and (ii) certain mortgage loans transferred by Bank of America to
the Purchaser pursuant to a mortgage loan purchase and sale agreement, dated as
of the date hereof between Bank of America and the Purchaser, to a trust (the
"Trust") created pursuant to the Pooling and Servicing Agreement (as defined
below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and/or Xxxxx'x Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Offered Certificates") will be registered under the Securities Act of 1933, as
amended (the "Securities Act"). The Trust will be created and the Certificates
will be issued pursuant to a pooling and servicing agreement to be dated as of
June 1, 2008 (the "Pooling and Servicing Agreement"), among BACM, as depositor,
Bank of America, National Association, as master servicer (the "Master
Servicer"), CWCapital Asset Management, LLC, as special servicer (the "Special
Servicer"), Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), and LaSalle Bank
National Association, as certificate administrator (in such capacity, the
"Certificate Administrator") and as REMIC administrator. Capitalized terms used
but not otherwise defined herein have the respective meanings assigned to them
in the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Barclays Capital Inc. ("Barclays"), and Citigroup Global
Markets Inc. ("Citigroup" and, collectively with BAS and Barclays, the
"Underwriters") pursuant to an underwriting agreement, dated as of June 19, 2008
(the "Underwriting Agreement"). BACM intends to sell the remaining Classes of
Certificates (the "Non-Offered Certificates") to BAS and Barclays, as initial
purchasers (together, the "Initial Purchasers"), pursuant to a certificate
purchase agreement, dated as of June 19, 2008 (the "Certificate Purchase
Agreement"), among BACM, BAS and Barclays. The Offered Certificates are more
fully described in the prospectus dated June 19, 2008 (the "Base Prospectus"),
and the supplement to the Base Prospectus dated June 19, 2008 (the "Prospectus
Supplement"; and, together with the Base Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The privately offered
Non-Offered Certificates are more fully described in a private placement
memorandum, dated June 19, 2008 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of June 19, 2008 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase and Sell.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans after the Cut-off Date
and takes into account credits, sales concessions, any related Interest Deposit
Amount and such other adjustments as agreed to between the parties in a separate
writing, which amount shall be payable on or about June 27, 2008 in immediately
available funds. The Purchaser shall be entitled to all interest accrued on the
Mortgage Loans on and after the Cut-off Date and all principal payments received
on the Mortgage Loans after the Cut-off Date except for principal and interest
payments due and payable on the Mortgage Loans on or before the Cut-off Date,
which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans, including without limitation all principal
and interest due on or with respect to the Mortgage Loans after the Cut-off
Date, together with BCRE's right, title and interest in and to any related
insurance policies and all other documents in the related Mortgage Files.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered or caused to be delivered to the Trustee the Mortgage File
for each Mortgage Loan. All Mortgage Files delivered prior to the Closing Date
will be held by the Trustee in escrow at all times prior to the Closing Date.
Each Mortgage File shall contain the documents set forth in the definition of
Mortgage File under the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Breach or Material Document Defect, as the case may be, is
capable of being corrected or cured but not within the applicable Initial
Resolution Period, (iii) that the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Document Defect, as
the case may be, within the applicable Initial Resolution Period, and (iv) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be corrected or cured within an additional period not to
exceed the Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such correction or cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, if the Seller's obligation to repurchase
any Defective Mortgage Loan as a result of a Material Breach or Material
Document Defect arises within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero days;
provided, however, if the Seller did not receive written notice from the
Master Servicer or the Special Servicer of the relevant Servicing Transfer
Event as of the commencement of the applicable Initial Resolution Period,
then such Servicing Transfer Event shall be deemed to have occurred during
such Initial Resolution Period and the immediately preceding clause (iii)
of this definition will be deemed to apply.
In addition, the Seller shall have an additional 90 days to cure
such Material Document Defect or Material Breach, provided that the Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach and such failure to cure is solely the result of a
delay in the return of documents from the local filing or recording authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Mortgage Loan or affected Mortgaged
Property or, in the case of a Cross-Collateralized Mortgage Loan, forbear from
enforcing any remedies against the other's Primary Collateral (as defined
below), but each is permitted to exercise remedies against the Primary
Collateral securing its respective affected Cross-Collateralized Mortgage Loans
or Mortgaged Properties, including, with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Cross-Collateralized Mortgage Loans or
Mortgaged Properties held by such party, then both parties shall forbear from
exercising such remedies until the related loan documents can be modified to
remove the threat of impairment as a result of the exercise of remedies.
"Primary Collateral" shall mean the Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
the 90th day following the Closing Date, the Seller shall reconfirm its
obligation to complete such Mortgage File and to correct all deficiencies
associated therewith, and, if it fails to do so within 45 days after its
receipt of such notice, the Seller shall deliver to the Purchaser or its
designee a limited power of attorney (in a form reasonably acceptable to
the Seller and the Purchaser) permitting the Purchaser or its designee to
execute all endorsements (without recourse) and to execute and, to the
extent contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related loan documents do not permit the
lender to require payment of such fees and expenses from the Mortgagor and the
Master Servicer or the Special Servicer, as applicable, has requested that the
related Mortgagor pay such fees and expenses and such Mortgagor refuses to do
so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of loan documents and assignments thereof that are contemplated by
the Pooling and Servicing Agreement to be completed after the Closing
Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and the Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Each party agrees to use its commercially reasonable best efforts to
perform its respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following, and the
delivery thereof on or prior to the Closing Date can only be waived and modified
by mutual consent of the parties hereto:
(a) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(b) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(c) Certificate of good standing regarding the Seller from the
Secretary of the State of Delaware , dated not earlier than 30 days prior to the
Closing Date; and
(d) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(e) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers and each
Rating Agency; and
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(h) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(i) One or more comfort letters from the Accountants dated the date
of any free writing prospectus, Prospectus Supplement and Memorandum,
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the free writing prospectus and
the Prospectus Supplement and to the Purchaser and the Initial Purchasers in the
case of the Memorandum stating in effect that, using the assumptions and
methodology used by the Purchaser, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to the
Mortgage Loans set forth in any free writing prospectus, the Prospectus
Supplement and the Memorandum, compared the results of their calculations to the
corresponding items in any free writing prospectus, the Prospectus Supplement
and the Memorandum, respectively, and found each such number and percentage set
forth in any free writing prospectus, the Prospectus Supplement and the
Memorandum, respectively, to be in agreement with the results of such
calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to
Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Barclays Capital Real Estate Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxx, telecopy number: (212)
412-7476 (with copies to Xxx Xxxxxxxx, Esq. at Barclays Capital Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxx X. Xxxxx, Esq. at Cadwalader,
Xxxxxxxxxx & Xxxx LLP, One World Financial Center, New York, New York 10281), or
to such other addresses as may hereafter be furnished to the Purchaser by the
Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other than
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loans (each a "Cross-Collateralized Set"), by their
terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized Set
is identified on the Mortgage Loan Schedule. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Set only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized Set
shall be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BARCLAYS CAPITAL REAL ESTATE INC.
By: /s/ XxxxXxx Xxxx
--------------------------------------
Name: XxxxXxx Xxxx
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Loan
Sequence Number Loan Seller Property Name Street Address City
-------------------------------------------------------------------------------------------------------------------------------
11 20072437 Barclays Capital Xxxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxxx
19 20061663 Barclays Capital Xxxxx Xxxxxx Xxxxxx 0000 00xx Xxxxxx Xxxxx Xxxxxx
20 20072355 Barclays Capital Meridian Concourse Center 4400, 4600, 4800 & 0000 Xxxxxxxxxx
000xx Xxxxxx Xxxxx
22 20072344 Barclays Capital EWL Portfolio (Rollup) Various Various
24 20072434 Barclays Capital Xxxxxx Aviation Air and Fuel 0000 Xxxx Xxxxxxxxx Xxxxxx
25 20061973 Barclays Capital Hawthorn Suites-Orlando Airport 7450 Augusta National Drive Orlando
26 20072387 Barclays Capital Heights at Battle Creek 0000 Xxxx Xxxxxxx Xxxxxx Broken Arrow
27 20072416 Barclays Capital 000 Xxxx Xxxxx 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
28 20072370 Barclays Capital XXX Xxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxx
30 20072436 Barclays Capital Brentridge Apartments 1500 Brentridge Drive Antioch
31 20072162 Barclays Capital Xxxxxx Furniture - Irving 2700 Ranch Trail Irving
40 20072438 Barclays Capital Lakeland RV Resort 0000 Xxxx Xxxxx Xxxx 59 Xxxxxx
41 20072389 Barclays Capital Mojave 15 1624 South Mojave Road Las Vegas
45 20072379 Barclays Capital Holiday Inn Express Seaside 00 Xxxxx Xxxxxxxx Xxxxx Xxxxxxx
64 20072303 Barclays Capital Xxxx Tabo Marketplace 2910 Xxxx Tabo Boulevard Albuquerque
69 20072393 Barclays Capital Arbors at Bastrop 000 Xxxxxxxx Xxxxx Bastrop
-------------------------------------------------------------------------------------------------------------------------------
Total $196,399,012
Remaining
Term To
Cut-off Stated
Loan Zip Mortgage Amortization Original Date Maturity
Sequence Number State Code Rate Basis Balance Balance (months)
------------------------------------------------------------------------------------------------------------------------
11 20072437 GA 30281 6.690% Actual/360 $21,750,000 $21,750,000 115
19 20061663 NJ 07047 6.550% Actual/360 $16,600,000 $16,600,000 114
20 20072355 FL 33762 6.900% Actual/360 $16,200,000 $16,200,000 114
22 20072344 CA Various 6.430% Actual/360 $15,700,000 $15,700,000 113
24 20072434 FL 34117 6.310% Actual/360 $14,620,000 $14,620,000 115
25 20061973 FL 32822 6.260% Actual/360 $14,640,000 $14,424,808 104
26 20072387 OK 74012 6.580% Actual/360 $14,000,000 $14,000,000 115
27 20072416 NC 28202 6.800% Actual/360 $14,000,000 $14,000,000 115
28 20072370 MO 64105 6.650% Actual/360 $13,550,000 $13,550,000 114
30 20072436 TN 37013 6.890% Actual/360 $12,000,000 $12,000,000 115
31 20072162 TX 75063 5.680% Actual/360 $11,740,000 $11,740,000 107
40 20072438 WI 53563 6.770% Actual/360 $8,550,000 $8,550,000 116
41 20072389 XX 00000 6.980% Actual/360 $8,300,000 $8,300,000 115
45 20072379 OR 97138 7.130% Actual/360 $7,225,000 $7,194,203 114
64 20072303 NM 87112 6.440% Actual/360 $4,000,000 $4,000,000 113
69 20072393 TX 78602 6.730% Actual/360 $3,770,000 $3,770,000 114
Stated Primary Master
Loan Maturity Due Monthly Administrative Servicing Servicing Ownership
Sequence Number Date Date Payment Fee Rate Fee Rate Fee Rate Interest
------------------------------------------------------------------------------------------------------------------------
11 20072437 1/1/2018 First 140,204 0.162% 0.080% 0.080% Fee
19 20061663 12/1/2017 First 105,470 0.162% 0.080% 0.080% Fee
20 20072355 12/1/2017 First 106,693 0.162% 0.080% 0.080% Leasehold
22 20072344 11/1/2017 First 98,513 0.162% 0.080% 0.080% Fee
24 20072434 1/1/2018 First 90,589 0.162% 0.080% 0.080% Fee
25 20061973 2/1/2017 First 90,236 0.162% 0.080% 0.080% Fee
26 20072387 1/1/2018 First 89,227 0.162% 0.080% 0.080% Fee
27 20072416 1/1/2018 First 91,270 0.162% 0.080% 0.080% Fee
28 20072370 12/1/2017 First 86,986 0.162% 0.080% 0.080% Fee
30 20072436 1/1/2018 First 78,952 0.162% 0.080% 0.080% Fee
31 20072162 5/1/2017 First 67,990 0.162% 0.080% 0.080% Fee
40 20072438 2/1/2018 First 55,569 0.162% 0.080% 0.080% Fee
41 20072389 1/1/2018 First 55,109 0.162% 0.080% 0.080% Fee
45 20072379 12/1/2017 First 48,701 0.162% 0.080% 0.080% Fee
64 20072303 11/1/2017 First 25,125 0.162% 0.080% 0.080% Fee
69 20072393 12/1/2017 First 24,402 0.162% 0.080% 0.080% Fee
Cross Original
Loan Collateralized Amortization XXX Xxxxx Loan
Sequence Number Loans (months) Loan Period Group
------------------------------------------------------------------------------------------------------------------------
11 20072437 No 360 5 2
19 20061663 No 360 5 1
20 20072355 No 360 5 1
22 20072344 No 360 5 1
24 20072434 No 360 5 1
25 20061973 No 360 5 1
26 20072387 No 360 5 2
27 20072416 No 360 5 1
28 20072370 No 360 5 1
30 20072436 No 360 5 2
31 20072162 No 360 5 1
40 20072438 No 360 5 1
41 20072389 No 360 5 1
45 20072379 No 360 5 1
64 20072303 No 360 5 1
69 20072393 No 360 5 2
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination and Funding. As of the date
of its origination, and to the actual knowledge of the Seller as of
the Closing Date, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination and funding of such
Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except as enforcement may be limited by bankruptcy and principles of
equity and, in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), (e) condominium declarations of record and identified in
such lender's title insurance policy (or if not yet issued, referred
to in its pro forma title policy, a preliminary title policy with
escrow instructions or a "marked up" commitment, in each case
binding on the title insurer), and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group; and such Mortgaged Property is free and
clear of any mechanics' and materialmen's liens which are prior to
or equal with the lien of the related Mortgage, except those which
are insured against by a lender's title insurance policy as
described above and to the Seller's actual knowledge no rights are
outstanding that under applicable law could give rise to any such
lien that would be prior or equal to the lien of the related
Mortgage and is not bonded over, escrowed for or covered by
insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property (to the extent that a filing of such a UCC
Financing Statement can perfect such a security interest). An
assignment of each UCC Financing Statement relating to the Mortgage
Loan has been delivered by Seller in blank which the Purchaser or
Trustee, as applicable, or designee is authorized to complete and to
file in the filing office in which such UCC Financing Statement was
filed. Each Mortgage Loan and the related Mortgage (along with any
security agreement and UCC Financing Statement), together with
applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the personal property
described above, and the principal benefits of the security intended
to be provided thereby; provided, if the related security agreement
and/or UCC Financing Statement has been recorded in the name of MERS
or its designee, no assignment of security agreement and/or UCC
Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Seller shall take all actions
as are necessary to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Notwithstanding the foregoing, no representation
is made as to the perfection of any security interest in rents or
any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan, there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property is covered by a fire and extended perils included
under the classification "All Risk of Physical Loss" insurance (or
the equivalent) policy in an amount at least equal to the lesser of
the outstanding principal balance of such Mortgage Loan and 100% of
the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance
policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Each Mortgaged Property securing a Mortgage Loan is
the subject of a business interruption or rent loss insurance policy
providing coverage for at least twelve (12) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will
cover no less than twelve (12) months of rental income). If any
portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a
flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with
a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (a) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on
a replacement basis, (b) the outstanding principal balance of such
Mortgage Loan, and (c) the maximum amount of insurance available
under the applicable National Flood Insurance Administration
Program. Each Mortgaged Property and all improvements thereon are
also covered by comprehensive general liability insurance in such
amounts as are generally required by reasonably prudent commercial
lenders for similar properties; if any Mortgaged Property is located
in the state of California or in "seismic zone" 3 or 4, a seismic
assessment was conducted (except in the case of mobile home parks)
at the time of origination and seismic insurance was obtained to the
extent such Mortgaged Property has a PML of greater than twenty
percent (20%) calculated using at least a 450 a year look back with
a 10% probability of exceedance in a 50 year period; all properties
in Florida and within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina and South Carolina
have windstorm insurance; any nonconformity with applicable zoning
laws and ordinances (1) is not a material nonconformity and does not
materially and adversely affect the use, operation or value of the
Mortgaged Property, (2) constitutes a legal non-conforming use or
structure which, in the event of casualty or destruction, may be
restored or repaired to materially the same extent of the use or
structure at the time of such casualty, (3) is covered by law and
ordinance insurance in an amount customarily required by reasonably
prudent commercial or multifamily, as applicable, mortgage lenders,
(4) is covered by a zoning endorsement covering any loss to the
mortgagee resulting from such non-conformity or (5) is covered by
insurance that will provide proceeds that, together with the value
of the related land, will be sufficient to repay the Mortgage Loan;
and additionally, for any Mortgage Loan having a Cut-off Date
Balance equal to or greater than $20,000,000, the insurer for all of
the required coverages set forth herein has a claims paying ability
rating from Standard & Poor's, Xxxxx'x or Fitch of not less than
A-minus (or the equivalent), or from A.M. Best of not less than
"A:V" (or the equivalent). At origination, and to the Seller's
knowledge as of the Closing Date, such insurance was, or is, as
applicable, in full force and effect with respect to each related
Mortgaged Property and no notice of termination or cancellation with
respect to any such insurance policy has been received by the
Seller; and except for certain amounts not greater than amounts
which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which
are set forth in the related Loan Documents, any insurance proceeds
in respect of a casualty loss will be applied either to (1) the
repair or restoration of the related Mortgaged Property with the
mortgagee or a third party custodian acceptable to the mortgagee
having the right to hold and disburse the proceeds as the repair or
restoration progresses, other than with respect to amounts that are
customarily acceptable to commercial and multifamily mortgage
lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan. The insurer with respect to
each policy is qualified to write insurance in the relevant
jurisdiction to the extent required. All such hazard and flood
insurance policies contain a standard mortgagee clause for the
benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of
coverage provided thereunder be reduced) without 30 days' prior
written notice to the mortgagee (or, with respect to non-payment, 10
days' prior written notice to the mortgagee) or such lesser period
as prescribed by applicable law; and no such notice has been
received, including any notice of non-payment of premiums, that has
not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Mortgagor or a tenant of such
Mortgagor maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under
circumstances that would be reasonably acceptable to a prudent
commercial mortgage lender after September 11, 2001 or that would
not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, for each Mortgage Loan, (A)
the related all risk property casualty insurance policy and business
interruption policy do not exclude acts of terrorism, or any related
damage claims or (B) Mortgagor has obtained insurance satisfying the
above coverage requirements against damage and business interruption
resulting from acts of terrorism, from coverage as of the later of
(i) the date of origination of the Mortgage Loan and (ii) the date
as of which the policy was renewed or amended, and the related Loan
Documents do not expressly prohibit or waive such coverage, except
to the extent that any right to require such coverage may be limited
by commercially reasonable availability. The Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty
insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related 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 Paragraph
(44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more property condition
or engineering reports (relating to lead-based paint, asbestos and
radon gas) or environmental site assessments meeting the
requirements of the American Society for Testing and Materials in
effect at the time the related report was or the related reports
were prepared covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such
an assessment, was performed by an experienced licensed (to the
extent required by applicable state law) environmental consulting
firm with respect to each Mortgaged Property securing a Mortgage
Loan in connection with the origination of such Mortgage Loan and
thereafter updated such that, (a) such Environmental Report is dated
no earlier than twelve months prior to the Closing Date, (b) a copy
of each such Environmental Report has been delivered to the
Purchaser; and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of
any applicable environmental laws with respect to any circumstances
or conditions relating to the related Mortgaged Property; or (ii) if
any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the
same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related
to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or
circumstance, (B) the related Mortgagor was required to provide
additional security adequate to cure the subject violation in all
material respects and to obtain an operations and maintenance plan,
(C) such conditions or circumstances were investigated further and
based upon such additional investigation, an independent
environmental consultant recommended no further investigation or
remediation, or recommended only the implementation of an operations
and maintenance program, which the Mortgagor is required to do, (D)
there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (E) the
related Mortgaged Property is insured under a policy of insurance
against losses arising from such circumstances and conditions, (F)
the circumstance or condition has been fully remediated, (G) the
related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such
condition or circumstance, (H) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser
of (a) 2% of the outstanding principal balance of the related
Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another
responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority, or (J) a
responsible party with financial resources reasonably adequate to
cure the violation provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report (and, with
respect to Mortgaged Properties with Environmental Reports dated
earlier than twelve months prior to the Closing Date, also to the
Seller's knowledge since the date of such report through the Closing
Date), there are no significant or material circumstances or
conditions with respect to any Mortgaged Property not revealed in
any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to Seller at the issue of any related
environmental insurance policy, if applicable, that render such
Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage, or other Loan Document in the
Mortgage File, for each Mortgage Loan encumbering the Mortgaged
Property requires the related Mortgagor to comply and cause the
Mortgaged Property to comply with all applicable federal, state and
local environmental laws and regulations. The Seller has not taken
any action which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws pertaining to
environmental hazards or which could subject the Seller or its
successors and assigns to liability under such laws. Each Mortgagor
represents and warrants in the related Loan Documents generally to
the effect that except as set forth in certain specified
environmental reports and to the best of its knowledge that as of
the date of origination of such Mortgage Loan, there were no
hazardous materials on the related Mortgaged Property, and that the
Mortgagor will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials, in any manner which
violates federal, state or local laws, ordinances, regulations,
orders, directives, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor
(or an affiliate thereof) has agreed to indemnify, defend and hold
the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a
breach of environmental representations, warranties or covenants
given by the Mortgagor in connection with such Mortgage Loan,
generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization (except as disclosed in the Prospectus Supplement) or
for the negative amortization of interest, except that, in the case
of an ARD Loan, such Mortgage Loan provides that, during the period
commencing on or about the related Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be
payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) subject to available funds, a portion of
the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to
the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Mortgagor under the Mortgage Loan or
otherwise nor holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan contained in the
same Cross-Collateralized Set of Mortgage Loans without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgage Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage File. No alterations, waivers, modifications or
assumptions of any kind have been given, made or consented to by or
on behalf of the Seller since May 26, 2008. The Seller has not taken
any intentional action that would cause the representations and
warranties of the related Mortgagor under the Mortgage Loan not to
be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage. The terms of the related Mortgage do not
provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than 125% of the related
allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of
such Mortgage Loan, (c) Mortgage Loans which permit defeasance by
means of substituting for the Mortgaged Property (or, in the case of
a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to
pay the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) either through and including
the maturity date of such Mortgage Loan or the first date that the
Mortgagor can prepay the Mortgage Loan without a prepayment premium,
and in the case of ARD Loans, assuming the Anticipated Repayment
Date is the Stated Maturity Date. Further, the Mortgage or other
related Loan Document contained in the Mortgage File requires that
an independent certified public accountant certify that such
government securities are sufficient to make all such scheduled
payments when due. To Seller's actual knowledge, defeasance under
the Mortgage Loan is only for the purpose of facilitating the
release of the Mortgaged Property and not as a part of an
arrangement to collateralize a REMIC with obligations that are not
real estate mortgages. With respect to each Defeasance Loan, the
related Mortgage or other related Loan Document provides that the
related Mortgagor shall (or permits the mortgagee to require the
Mortgagor to) (a) pay all Rating Agency fees associated with
defeasance (if Rating Agency approval is a specific condition
precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and
opinions of counsel, or (b) provide all opinions reasonably required
by the mortgagee under the related Loan Documents, including, if
applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Balance
equal to or greater than $20,000,000, the Mortgage Loan or the
related documents require (or permit the mortgagee to require)
confirmation from the Rating Agency that exercise of the defeasance
option will not cause a downgrade or withdrawal of the rating
assigned to any securities backed by the Mortgage Loan and require
(or permit the mortgagee to require) the Mortgagor to pay any Rating
Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date, the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a
legal non-conforming use or structure, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide,
and/or which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified
under applicable law to serve as such, has either been properly
designated and currently so serves or may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the Seller to the Purchaser and
identified as such with appropriate detail on the Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor was in possession of all material licenses,
permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been
issued.
(39) Servicing and Collection Practices. The servicing and
collection practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Mortgagor Organization. Each Mortgagor that is an entity
is organized under the laws of a state of the United States of
America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20,000,000 shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the
related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted
a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage
Loans secured by Ground Leases, each of the Mortgagors (or its
affiliates) has title in the fee simple interest in each related
Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal; if any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such Mortgage Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified
margin not less than 2 percent (2%); the Anticipated Repayment Date
of any such Mortgage Loan is not less than 7 years from the date of
origination; and after the Anticipated Repayment Date, the Loan
Documents provide that excess cash flow after payment of expenses,
including scheduled interest and capital expenditures approved by
the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required
under applicable law as of the date of origination, and necessary
for the enforceability or collectability of the Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
(48) No Financing for Incomplete Improvements. The Mortgage
Loan was not originated for the purpose of financing the
construction of incomplete improvements on the related Mortgaged
Property other than tenant improvements.
(49) No Fraud. Neither the Seller, the originator, nor any
employee or agent of the Seller or the originator has participated
in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Mortgagor or guarantor is guilty of
defrauding or making an intentional material misrepresentation to
the Seller with respect to the origination of the Mortgage Loan, the
Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for delinquent Monthly Payments no longer
than 10 days from the applicable Due Date other than as disclosed in
the Mortgage Loan Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the
appraisal or a supplemental letter from the appraiser states that
the appraisal satisfies the appraisal guidelines set forth in Title
XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (as amended), all as in effect on the date the Mortgage
Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the
Prospectus Supplement, (a) no Mortgagor is the Mortgagor with
respect to more than one Mortgage Loan and (b) to the Seller's
knowledge, no Cross-Collateralized Set of Mortgage Loans with
affiliated mortgagors have an aggregate principal balance equaling
more than $109,318,750.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to
the insurer under such policy copies of all
environmental reports in the Seller's possession related
to such Mortgaged Property,
in each case with respect to (i) and (ii) to the
extent required by such policy or to the extent the
failure to make any such disclosure or deliver any such
report would materially and adversely affect the
Purchaser's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
SCHEDULE IIA
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the
corresponding Mortgage Loan representations and warranties set forth in
Schedule II to the Mortgage Loan Purchase Agreement for Barclays
Capital Real Estate Inc.
Annex A
ID # Mortgage Loan Exception
Exceptions to Representation 9 (Mortgage Lien)
20061663 North Bergen Center The Department of New Light Rail
Construction, New Jersey Transit, is
contemplating certain future proposed
easements across a portion of the
Mortgaged Property for (x) temporary
construction and (y) permanent drainage
as well as temporarily leasing
approximately thirty (30) parking spaces
at the Mortgaged Property in connection
with the proposed "69th Street Grade
Separation Project." The Mortgagor has
represented in the Loan Documents that to
its best knowledge, neither the temporary
construction easement, the permanent
drainage easement, the temporary lease
for approximately thirty (30) parking
spaces at the Mortgaged Property nor the
"69th Street Grade Separation Project"
(including the construction thereof) as
currently contemplated shall have a
"material adverse effect", nor shall any
of the costs and expenses associated with
the construction of the "69th Street
Grade Separation Project" as currently
contemplated be borne by the Mortgagor.
Exceptions to Representation 14 (Insurance)
20072344 EWL Portfolio Two of the four buildings at the North
Hollywood property have a PML of 25%,
7241 Lankershim and 7253 Lankershim; the
four buildings at this Mortgaged Property
have an aggregate PML of 19%. In lieu of
requiring the Mortgagor to obtain
earthquake insurance, the loan is fully
recourse to the Mortgagor and the
recourse carveout guarantor if any part
of the improvements at the North
Hollywood property are damaged or
destroyed as a result of an earthquake or
similar havoc, unless and until such time
as (1)(A) an earthquake insurance policy
in form and substance acceptable to the
mortgagee and in compliance with the
requirements of the Loan Agreement is in
full force and effect or (B) the
Mortgagor provides evidence to the
mortgagee in form and substance
acceptable to the mortgagee that the
North Hollywood property has a PML, as
determined by the mortgagee, of less than
20%; and (2) the Mortgagor repairs and
restores such improvements at the North
Hollywood property to the reasonable
satisfaction of the mortgagee.
20072393 Arbors at Bastrop The Mortgagor is only required to
maintain terrorism coverage to the extent
and at the level obtainable at an annual
premium for such insurance not to exceed
250% of the premium payable by the
Mortgagor for such coverage at
origination.
Exceptions to Representation 19 (Environmental Conditions)
20061663 North Bergen Center, The related Environmental Report is dated
20061973 Hawthorn Suites - more than twelve months prior to the
20072162 Orlando Airport, Closing Date.
20072303 Xxxxxx Furniture -
Xxxxxx, Xxxx Tabo
Marketplace
20061663 North Bergen Center The Mortgagor is expecting to receive a
"no further action" letter from the New
Jersey Department of Environmental
Protection (the "NJDEP") with respect to
three underground storage tanks for which
no closure reports were on file with the
NJDEP. The environmental consultant found
the presence of BNs in the soil and
groundwater a result of the historical
fill materials, and the presence of VOCs
in the soil and groundwater a result of
an historic petroleum release and
performed a fill investigation in April
2006. The environmental consultant
concluded that the appropriate remedial
alternative would be the use of
engineered controls (in the form of
existing on-site pavement) and
institutional controls (in the form of a
restrictive deed notice restricting
disturbance of the soil and a declaration
of environmental restriction prohibiting
the use of groundwater on the Mortgaged
Property). On December 3, 2007, the NJDEP
approved the Remedial Action Work Plan
("RWP") and the environmental consultant
then submitted the final RWP to the NJDEP
confirming the implementation of the
environmental controls. The mortgagee
will hold an escrow in the amount of
$83,202.89 until such time as the
Mortgagor delivers to the mortgagee: (I)
a copy of the declaration of
environmental restriction prohibiting the
use of groundwater on the Mortgaged
Property, which declaration the Mortgagor
shall cause to be mailed to the local
regulatory agencies; (II) a copy of the
deed notice restricting disturbance of
soil, which deed notice the Mortgagor
shall cause to be recorded on the land
records; (III) annual updates, regarding
the status and progress of the work set
forth in the foregoing clauses until such
time as the NJDEP issues a "no further
action letter" or substantial equivalent
together with such other documentation,
information and evidence pertaining
thereto as the mortgagee may reasonably
require; and (IV) evidence in form and
substance reasonably satisfactory to the
mortgagee that regulatory closure has
been achieved and "closed" status has
been granted with respect thereto,
including without limitation, a copy of
any "no further action" or substantial
equivalent from the NJDEP.
Exceptions to Representation 21 (Bankruptcy)
All Barclays Mortgage The Seller makes no representation
Loans regarding the bankruptcy or insolvency of
any tenant at the Mortgaged Property.
Exceptions to Representation 23 (Due-on-Sale)
Various Various The Mortgage Loan documents also
generally permit, without mortgagee
consent, (i) transfers by devise, descent
or operation of law upon the death of a
direct or indirect member, partner or
shareholder of the related Mortgagor, and
(ii) transfers with respect to any person
whose stocks or certificates are traded
on a nationally recognized stock exchange.
20072437 Waterford Place The sole member of the Mortgagor pledged
Apartments 100% of its membership interest in the
Mortgagor as security for a loan with a
current outstanding balance of
$6,525,250. An intercreditor agreement in
favor of the mortgagee was executed.
In addition, in connection with certain
tenant-in-common transfers, the mortgagee
will be deemed to have granted its
approval to the transfer of the mortgagee
fails to respond within 10 business days
of the request for approval. However, as
a condition precedent to each such
transfer, a "no downgrade" letter must be
obtained from each rating agency then
rating the certificates.
20061663 North Bergen Center The Loan Documents permit the equity
owners of the Mortgagor to obtain
mezzanine financing subject to
satisfaction of conditions contained in
the Loan Documents, including
confirmation from the rating agencies of
"no downgrade" on the certificates.
20072355 Meridian Concourse The sole member of the Mortgagor pledged
Center 100% of its membership interest in the
Mortgagor as security for a loan with a
current outstanding balance of
$1,400,000.00. An intercreditor agreement
in favor of the mortgagee was executed.
20072344 Xxxxxx Aviation Air In connection with certain
and Fuel tenant-in-common transfers, the mortgagee
will be deemed to have granted its
approval to the transfer if the mortgagee
fails to respond within 20 business days
of the request for approval.
20072387 Heights at Battle The Loan Documents permit the equity
Creek owners of the Mortgagor to obtain
mezzanine financing subject to
satisfaction of conditions contained in
the Loan Documents, including
confirmation from the rating agencies of
"no downgrade" on the certificates.
In addition, in connection with certain
tenant-in-common transfers, the mortgagee
will be deemed to have granted its
approval to the transfer of the mortgagee
fails to respond within 10 business days
of the request for approval.
20072370 HOK Sport Office The Loan Documents permit the equity
Building owners of the Mortgagor to obtain
mezzanine financing subject to
satisfaction of conditions contained in
the Loan Documents, including
confirmation from the rating agencies of
"no downgrade" on the certificates.
In addition, in connection with certain
tenant-in-common transfers, the mortgagee
will be deemed to have granted its
approval to the transfer of the mortgagee
fails to respond within 10 business days
of the request for approval.
20072436 Brentridge Apartments In connection with certain
tenant-in-common transfers, the mortgagee
will be deemed to have granted its
approval to the transfer of the mortgagee
fails to respond within 10 business days
of the request for approval. However, as
a condition precedent to each such
transfer, a "no downgrade" letter must be
obtained from each rating agency then
rating the certificates.
20072438 Lakeland RV Resort The sole member of the Mortgagor pledged
100% of its membership interest in the
Mortgagor as security for a loan with a
current outstanding balance of
$1,670,664.00. An intercreditor agreement
in favor of the mortgagee was executed.
In addition, the Mortgagor is entitled to
refinance its existing debt with either
mezzanine debt or secured subordinate
debt subject to satisfaction of
conditions contained in the Loan
Documents, including that the existing
debt is paid off.
20072393 Arbors at Bastrop The Loan Documents permit the equity
owners of the Mortgagor to obtain
mezzanine financing in connection with a
future sale of the Mortgaged Property and
loan assumption by the purchaser subject
to satisfaction of conditions contained
in the Loan Documents, including
confirmation from the rating agencies of
"no downgrade" on the certificates.
Exceptions to Representation 24 (Waivers and Modifications)
20072437 Waterford Place The Loan Agreement was modified on June
Apartments 11, 2008 to permit the extension of the
maturity of the mezzanine financing to
December 31, 2008.
20072389 Mojave 15 The Loan Agreement was amended on May 28,
2008 to increase the amount to be
deposited into the replacement reserve
account.
Exception to Representation 28 (Local Law Compliance; Non-Conforming Uses or
Improvements)
20072344 EWL Portfolio Parking is deficient at two of the
Mortgaged Properties; however, the
Mortgagor is required to re-stripe and
repave the parking lots to remedy the
issue within 45 days of the origination
date. In the event the Mortgagor fails to
do so, the Mortgage Loan will be full
recourse to the Mortgagor and the
non-recourse carveout guarantor.
Exceptions to Representation 33 (No Usury)
20072437 Waterford Place The initial interest rate is 6.04%
Apartments through January 1, 2011 and then steps up
to 6.69% for the remainder of the loan
term.
20072436 Brentridge Apartments The initial interest rate is 6.33%
through January 1, 2011 and then steps up
to 6.89% for the remainder of the loan
term.
Exceptions to Representation 41 (Non-Recourse Exceptions)
20072437 Waterford Place As a result of the tenant-in-common
Apartments structure, the sponsor borrower and the
related sponsor recourse carveout
guarantor are only liable to the extent
of costs, liabilities, losses, claims,
expenses or other obligations arising in
whole or in part out of matters caused by
or consented to by (i) the sponsor
borrower, (ii) the sponsor recourse
carveout guarantor, (iii) the master
lessee or any affiliate of the foregoing,
and the sponsor borrower and the related
sponsor recourse carveout guarantor will
not be liable for the acts or activities
of any investor borrower or the related
recourse carveout guarantor.
In addition, each investor borrower under
the related Mortgage Loan and the related
recourse carveout guarantor is or will be
liable under its recourse carveout
guaranty only to the extent that the
event that caused the liability under
such guaranty was caused by such investor
borrower. Also, the sponsor borrower and
the sponsor recourse carveout guarantor
will be solely liable for some additional
recourse carveouts.
20072434 Xxxxxx Aviation Air As a result of the tenant-in-common
and Fuel structure, each investor borrower under
the related Mortgage Loan and the related
recourse carveout guarantor is or will be
liable under its recourse carveout
guaranty only to the extent that the
event that caused the liability under the
guaranty was caused by such investor
borrower. Also, the sponsor recourse
carveout guarantor under the related
Mortgage Loan is not a natural person.
20072387 Heights at Battle As a result of the tenant-in-common
Creek structure, each investor borrower under
the related Mortgage Loan and the related
recourse carveout guarantor is or will be
liable under its recourse carveout
guaranty only to the extent that the
event that caused the liability under the
guaranty was caused by such investor
borrower, capped at an amount equal to
its proportionate share of Mortgage Loan.
Also, the sponsor recourse carveout
guarantor under the related Mortgage Loan
is not a natural person. In addition, the
sponsor borrower and the sponsor recourse
carveout guarantor will be solely liable
for some additional recourse carveouts.
20072370 HOK Sport Office As a result of the tenant-in-common
Building structure, each investor borrower under
the related Mortgage Loan and the related
recourse carveout guarantor is or will be
liable under its recourse carveout
guaranty only to the extent that the
event that caused the liability under the
guaranty was caused by such investor
borrower, capped at an amount equal to
its proportionate share of Mortgage Loan.
Also, the sponsor recourse carveout
guarantor under the related Mortgage Loan
is not a natural person. In addition, the
sponsor borrower and the sponsor recourse
carveout guarantor will be solely liable
for some additional recourse carveouts.
20072436 Brentridge Apartments As a result of the tenant-in-common
structure, the sponsor borrower and the
related sponsor recourse carveout
guarantor are only liable to the extent
of costs, liabilities, losses, claims,
expenses or other obligations arising in
whole or in part out of matters caused by
or consented to by (i) the sponsor
borrower, (ii) the sponsor recourse
carveout guarantor, (iii) the master
lessee or any affiliate of the foregoing,
and the sponsor borrower and the related
sponsor recourse carveout guarantor will
not be liable for the acts or activities
of any investor borrower or the related
recourse carveout guarantor.
In addition, each investor borrower under
the related Mortgage Loan and the related
recourse carveout guarantor is or will be
liable under its recourse carveout
guaranty only to the extent that the
event that caused the liability under
such guaranty was caused by such investor
borrower. Also, the sponsor borrower and
the sponsor recourse carveout guarantor
will be solely liable for some additional
recourse carveouts.
20072162 Xxxxxx Furniture - The recourse carveout guarantor is not a
Irving natural person.
20072438 Lakeland RV Resort In lieu of providing an environmental
indemnity from the recourse carveout
guarantor, the Mortgagor provided a
"Lender Environmental Collateral
Protection and Liability Insurance"
policy (the "Environmental Policy") with
a $2 million coverage limit, expiring
January 15, 2018. In addition, so long as
the Environmental Policy fails to insure
as to mold or fungus at the Mortgaged
Property, the recourse carveout guarantor
is liable for any related losses.
Exceptions to Representation 42 (Separate Tax Parcels)
20072438 Lakeland RV Resort A portion of the Mortgaged Property
contains the same tax parcel number as
another parcel that was subdivided at
origination (the "Adjacent Parcel"). At
origination, the Mortgagor covenanted
that (i) it has taken all actions
necessary for the Mortgaged Property to
be assessed and designated as one or more
wholly independent tax lot or lots,
separate from the Adjacent Parcel or any
other adjoining land or improvements not
constituting a part of the Mortgaged
Property, and (ii) it has requested that
the applicable taxing authority designate
the Mortgaged Property as a separate tax
lot or lots. Pursuant to the Loan
Documents, the Mortgagor is required to
obtain such separate tax lot designation
for the Mortgaged Property as soon as
possible pursuant to the applicable
taxing authority's procedures, provided
that, in any event, such designation must
be obtained on or before the date on
which the taxes are determined for the
next succeeding tax year following the
year of origination. Upon receipt of such
designation, the Mortgagor is required to
deliver to the mortgagee (i) written
confirmation of such separate tax lot
designation, and (ii) an endorsement to
the mortgagee's policy of title
insurance, in form acceptable to the
mortgagee, with respect to such separate
tax lot designation.
20072370 HOK Sport Office The related Mortgagor's interest in a
Building portion of the Mortgaged Property is
subject to "condominium declaration". The
common elements may be taxed as a
separate tax lot.
Exceptions to Representations 43 (Financial Statements)
20072437 Waterford Place The Mortgagor is only required to submit
Apartments unaudited annual financial statements to
the lender. However, the lender has the
right to have an independent audit
conducted of any of the Mortgagor's
financial information, which right shall
not be exercised more frequently than
once each year unless an "event of
default" exists.
Exceptions to Representation 45 (Fee Simple Interest)
20072303 Xxxx Tabo Marketplace One of the tenants at the Mortgaged
Property owns its own improvements. The
fee interest in those improvements will
be transferred to the Mortgagor upon
expiration of the related ground lease in
September 2012.
20072370 HOK Sport Office The related Mortgagor's interest in the
Building Mortgaged Property is subject to a
"condominium declaration". The related
Mortgagor's rights in the common elements
are limited to those rights established
in the "condominium declaration".
