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, 2007, between Bear Xxxxxxx Commercial
Mortgage, Inc., as seller (the "Seller" or "BSCMI"), and Banc of America
Commercial Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey
to the Purchaser, and the Purchaser desires to purchase, subject to the terms
and conditions set forth below, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule"), except that the Seller will transfer the related
master servicing rights (the "Servicing Rights") separately pursuant to the
Master Servicing Rights Purchase Agreement, dated as of June 6, 2007, among
BACM, BSCMI and Bank of America, National Association.
The Purchaser intends to transfer or cause the transfer of: (i)
the Mortgage Loans and (ii) certain mortgage loans transferred by BSCMI to the
Purchaser pursuant to a mortgage loan purchase and sale agreement, dated as of
the date hereof between BSCMI and the Purchaser, to a trust (the "Trust")
created pursuant to the Pooling and Servicing Agreement (as defined below).
Beneficial ownership of the assets of the Trust (such assets collectively, the
"Trust Fund") will be evidenced by a series of commercial mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Fitch, Inc. and/or Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Offered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of June 1, 2007 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), LNR Partners, Inc., as special servicer
(the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (in such
capacity, the "Trustee") and as REMIC administrator. Capitalized terms used but
not otherwise defined herein have the respective meanings assigned to them in
the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Credit Suisse
Securities (USA) LLC ("Credit Suisse") and Greenwich Capital Markets, Inc. ("RBS
Greenwich Capital" and, collectively with BAS, Bear Xxxxxxx and Credit Suisse,
the "Underwriters") pursuant to an underwriting agreement, dated as of May 24,
2007 (the "Underwriting Agreement"). BACM intends to sell the remaining Classes
of Certificates (the "Non-Offered Certificates") to BAS and Bear Xxxxxxx, as
initial purchasers (collectively, the "Initial Purchasers"), pursuant to a
certificate purchase agreement, dated as of May 24, 2007 (the "Certificate
Purchase Agreement"), among BACM, BAS and Bear Xxxxxxx. The Offered Certificates
are more fully described in the prospectus dated May 24, 2007 (the "Base
Prospectus"), and the supplement to the Base Prospectus dated May 24, 2007 (the
"Prospectus Supplement"; and, together with the Base Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
privately offered Non-Offered Certificates are more fully described in a private
placement memorandum, dated May 24, 2007 (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 1, 2007
(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 shall be payable on or about June 6, 2007 in immediately available funds.
The Purchaser shall be entitled to all interest accrued on the Mortgage Loans on
and after the Cut-off Date and all principal payments received on the Mortgage
Loans after the Cut-off Date except for principal and interest payments due and
payable on the Mortgage Loans on or before the Cut-off Date, which shall belong
to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with BSCMI'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 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 New York.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance of Seller's obligations under this Agreement, will
not violate the Seller's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default or breach, in the
Seller's good faith and commercially reasonable judgment is likely to
affect materially and adversely either the ability of the Seller to
perform its obligations under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into
and perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to
materially and adversely affect either the ability of the Seller to
perform its obligations under this Agreement or the financial condition
of the Seller.
(vii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Seller of the
transactions contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and those
filings and registrations that previously have been completed, and except
for those filings and recordings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing
Agreement to be completed after the Closing Date.
(b) 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 applicable 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 Mortgage Loan documents can be
modified to remove the threat of impairment as a result of the exercise of
remedies. "Primary Collateral" shall mean the Mortgaged Property directly
securing a Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
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 Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the 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 Mortgage Loan documents and assignments thereof that
are contemplated by the Pooling and Servicing Agreement to be completed
after the Closing Date.
(iii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
agreement by the Purchaser, will not violate the Purchaser's certificate
of incorporation or by-laws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche 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 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.
Both parties agree to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser
and the Seller, and the Pooling and Servicing Agreement, duly executed and
delivered by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Secretary of the State of New York, dated not earlier than 30 days prior to the
Closing Date; and
(e) A certificate of the Seller, executed by an executive officer
or authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the 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
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the
respective parties thereto; and
(j) One or more comfort letters from the Accountants dated the
date of any free writing prospectus, Prospectus Supplement and Memorandum,
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the free writing prospectus and
the Prospectus Supplement and to the Purchaser and the 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 Bear Xxxxxxx Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department, telecopy number: (000) 000-0000 (with
copies to Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department:
telecopy number: (000) 000-0000) 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 then 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan Number Loan Seller Property Name
-------- ----------- ----------- -----------------------------------------------
1 51006 BSCMI Beacon Seattle & DC Portfolio (Rollup)
1.1 00000 XXXXX Xxxxxx Xxxxxx
1.2 51006 BSCMI Polk & Xxxxxx
1.3 51006 BSCMI Xxxxx Fargo Center
1.4 51006 BSCMI Lafayette Center
1.5 51006 BSCMI Xxxx Xxxxx Complex
1.6 51006 BSCMI Key Center
1.7 51006 BSCMI Xxxxxx Xxxxx
0.0 00000 XXXXX Xxxx Center Bellevue
1.9 51006 BSCMI Plaza Center
1.10 51006 BSCMI 0000 Xxxxx Xxxx Xxxx Xxxxx
1.11 51006 BSCMI American Center
1.12 51006 BSCMI Eastgate Office Park
1.13 51006 BSCMI Liberty Place
1.14 51006 BSCMI Lincoln Executive Center
1.15 51006 BSCMI 00000 Xxxxxx Xxxxx Xxxx
1.16 51006 BSCMI Army and Navy Building
1.17 51006 BSCMI Plaza East
1.18 51006 BSCMI 0000 Xxxxx Xxxxxxxxxxx Xxxxxx
1.19 51006 BSCMI Xxxxxx Xxxx Xxxxxx
0.00 00000 XXXXX Xxxxxxxxxx Mutual Tower
12 48595 BSCMI Investcorp Industrial Portfolio (Rollup)
12.1 48595 BSCMI North Haven Distribution Center
12.2 48595 BSCMI Cheshire Commerce Center
14 49394 BSCMI Palm Beach Gardens Marriott
16 49150 BSCMI Austin Student Housing Portfolio (Rollup)
16.1 49150 BSCMI The Castillian
16.2 49150 BSCMI Texan West Campus
Rollup BSCMI Rite Aid & Walgreen's Crossed Portfolio
23 49148 BSCMI Walgreen's Guaynabo & Eckerd XxXxxxxxx (Rollup)
23.1 49148 BSCMI Walgreen's Xxxxxxxx
00.0 00000 XXXXX Xxxxxx XxXxxxxxx
24 49754 BSCMI Walgreen's Carolina
25 49092 BSCMI Rite Aid - Coldwater and Shelby (Rollup)
25.1 49092 BSCMI Rite Aid - Shelby
25.2 49092 BSCMI Rite Aid - Coldwater
41 49565 BSCMI Xxxxxxxxxx Xxxxxxxx Xxxxxx
00 00000 XXXXX Xxxxx X'Xxxxxxxxx
49 49918 BSCMI Georgetown Apartments
51 49756 BSCMI Parkway Shopping Center
54 49799 BSCMI Radisson Phoenix
55 50037 BSCMI Best Western Fort Xxxxx
66 49802 BSCMI Xxxxxxxx Xxxxx
00 00000 XXXXX Xxxxxxx Chevrolet - Tomball
83 49411 BSCMI Travelodge - Xxxxx Xxxxx Xxxxxx
000 00000 XXXXX Xxxxxxx Shopping Center
114 47852 BSCMI 0000 Xxxxxxxxxxx Xxxxxx
137 49974 BSCMI Xxxxxx - Xxxxxxx Street
141 50269 BSCMI Rite Aid - McKeesport
149 49410 BSCMI Super 8 - South Padre Island
Totals
Sequence Street Address
-------- -----------------------------------------------------------------------------------------------------------
1 Various
1.1 701 & 000 Xxxxxxxxxxxx Xxxxxx, XX
1.2 0000 X Xxxxx Xxxxxx & 0000 Xxxxxxx Xxxxx
1.3 000 Xxxxx Xxxxxx
1.4 0000 00xx Xxxxxx XX; 0000 00xx Xxxxxx, XX; 0000 00xx Xxxxxx, XX
1.5 0000 Xxxxxxxxxx Xxxxx; 0000 Xxxxxxxxxx Xxxxx; 0000 Xxxxxxxxxx Xxxxx
1.6 000 000xx Xxxxxx XX
1.7 3060 - 0000 000xx Xxxxxx XX
1.8 000 000xx Xxxxxx XX
1.9 10800 - 10900 NE 0xx Xxxxxx
1.10 0000 Xxxxx Xxxx Xxxx Xxxxx
1.11 8300 & 0000 Xxxxx Xxxxxxxxx
1.12 00000 XX 00xx Xxxxx
1.13 000 0xx Xxxxxx, XX
1.14 0000 000xx Xxxxx XX & 0000 000xx Xxxxx SE, 00000 XX Xxxxxxxx Xxx, 0000 000xx Xxxxx XX & 0000 000xx Xxxxx XX
1.15 00000 Xxxxxx Xxxxx Xxxx
1.16 0000 X Xxxxxx, XX
1.17 00000 XX 0xx Xxxxxx
1.18 0000 Xxxxx 00xx Xxxxxx
1.19 00000 Xxxxxxx Xxxxx
1.20 0000 Xxxxx Xxxxxx
12 Various
12.1 000 Xxxxxxxxx Xxxxxx
12.2 000 Xxxx Xxxxxxx Xxxxxx
14 0000 XXX Xxxx
16 Various
16.1 0000 Xxx Xxxxxxx Xxxxxx
16.2 0000 Xxxxxx Xxxxxx
Various
23 Various
23.1 Xxxxx Xxxx Xx.00 & Xxxxx Xxxx Xx. 000
23.2 0000 Xxxxxxxxx Xxxx
00 Xxxxx Xxxx Xx. 000 & Xxxxx Xxxx Xxxx
25 Various
25.1 00000 Xxx Xxxx Xxxxxx
25.2 000 Xxxx Xxxxxxx Xxxx
41 000 Xxxx Xxxxxx Xxxx
00 00000 Cinema Drive
49 0000 Xxxxxxxxx Xxxxx
51 1471 Xxxxxx Xxxxxx
00 0000 Xxxxx 0xx Xxxxxx
55 0000 Xxxxxxx Xxxxxxx
66 0000 Xxxxx Xxxxxxxx Xxxx
00 00000 Xxxxx Xxxxxxx 249
83 6200 Padre Blvd
000 000-000 Montana Avenue;2610-2616,2625,2629-2665 Xxxx 0xx Xx., 0000,0000,0000,0000,0000,0000 Xxxx 0xx Xx.
114 0000-0000 Xxxxxxxxxxx Xxxxxx
137 0000 Xxxxxxx Xxxxxx
141 0000 Xxxxxx Xxxxxx
149 4205 Padre Boulevard
Sequence City State Zip Code Mortgage Rate Amortization Basis (1) Original Balance
-------- -------------------- ------- -------- ------------- ---------------------- ----------------
1 Various Various Various 5.797% Actual/360 $394,477,317
1.1 Xxxxxxxxxx XX 00000 60,952,054
1.2 Xxxxxxxxx XX 00000 48,277,714
1.3 Xxxxxxx XX 00000 45,397,182
1.4 Xxxxxxxxxx XX 00000 41,030,296
1.5 XxXxxx XX 00000 34,600,949
1.6 Xxxxxxxx XX 00000 23,124,910
1.7 Xxxxxxxx XX 00000 21,488,768
1.8 Xxxxxxxx XX 00000 21,333,219
1.9 Xxxxxxxx XX 00000 17,490,590
1.10 Xxxxxxxxx XX 00000 16,130,978
1.11 Xxxxxx XX 00000 12,213,455
1.12 Xxxxxxxx XX 00000 10,669,490
1.13 Xxxxxxxxxx XX 00000 10,139,472
1.14 Xxxxxxxx XX 00000 9,851,419
1.15 Xxxxxx XX 00000 8,664,640
1.16 Xxxxxxxxxx XX 00000 7,316,551
1.17 Xxxxxxxx XX 00000 5,795,630
1.18 Xxxxxxxxx XX 00000 0
1.19 Xxxxxx XX 00000 0
1.20 Xxxxxxx XX 00000 0
12 Various CT Various 6.041% Actual/360 61,000,000
12.1 Xxxxx Xxxxx XX 00000 35,000,000
12.2 Xxxxxxxx XX 00000 26,000,000
14 Xxxx Xxxxx Xxxxxxx XX 00000 5.724% Actual/360 50,000,000
16 Xxxxxx XX 00000 5.982% Actual/360 44,400,000
16.1 Xxxxxx XX 00000 28,300,000
16.2 Xxxxxx XX 00000 16,100,000
Various Various Various Actual/360 25,304,000
23 Various Various Various 5.617% Actual/360 11,454,000
23.1 Xxxxxx XX 00000 7,700,000
23.2 XxXxxxxxx XX 00000 3,754,000
24 Xxxxxxxx XX 00000 5.617% Actual/360 8,100,000
25 Various MI Various 5.719% Actual/360 5,750,000
25.1 Xxxxxx Xxxxxxxx XX 00000 3,162,500
25.2 Xxxxxxxxx XX 00000 2,587,500
41 Xxxxxxxxxx XX 00000 5.592% Actual/360 14,600,000
48 X'Xxxxxxxxx XX 00000 6.055% Actual/360 11,550,000
00 Xxxxx Xxxx XX 00000 5.634% Actual/360 11,381,325
51 Xxxxxxxxx XX 00000 5.636% Actual/360 10,750,000
54 Xxxxxxx XX 00000 6.048% Actual/360 10,400,000
55 Xxxx Xxxxx XX 00000 5.670% Actual/360 10,400,000
66 Xxxxxx XX 00000 5.874% Actual/360 8,920,000
74 Xxxxxxx XX 00000 5.912% Actual/360 7,925,000
00 Xxxxx Xxxxx Xxxxxx XX 00000 5.720% Actual/360 6,800,000
000 Xxxxxx XX 00000 6.050% Actual/360 5,000,000
000 Xxx Xxxxxxxxxx XX 00000 6.016% Actual/360 4,550,000
000 Xxxxx Xxxxx Xxxxxxxx XX 00000 5.610% Actual/360 3,487,000
000 XxXxxxxxxx XX 00000 5.740% Actual/360 3,300,000
000 Xxxxx Xxxxx Xxxxxx XX 00000 5.720% Actual/360 3,000,000
Sequence Cut-off Date Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date
-------- -------------------- ------------------------------------------ -------------------- --------
1 $394,477,317 59 5/7/2012 Seventh
1.1 60,952,054
1.2 48,277,714
1.3 45,397,182
1.4 41,030,296
1.5 34,600,949
1.6 23,124,910
1.7 21,488,768
1.8 21,333,219
1.9 17,490,590
1.10 16,130,978
1.11 12,213,455
1.12 10,669,490
1.13 10,139,472
1.14 9,851,419
1.15 8,664,640
1.16 7,316,551
1.17 5,795,630
1.18 0
1.19 0
1.20 0
12 61,000,000 115 1/1/2017 First
12.1 35,000,000
12.2 26,000,000
14 50,000,000 60 6/1/2012 First
16 44,400,000 80 2/1/2014 First
16.1 28,300,000
16.2 16,100,000
25,304,000
23 11,454,000 119 5/1/2017 First
23.1 7,700,000
23.2 3,754,000
24 8,100,000 119 5/1/2017 First
25 5,750,000 119 5/1/2017 First
25.1 3,162,500
25.2 2,587,500
41 14,600,000 119 5/1/2017 First
48 11,504,070 117 3/1/2017 First
49 11,381,325 119 5/1/2017 First
51 10,750,000 119 5/1/2017 First
54 10,400,000 119 5/1/2017 First
55 10,400,000 82 4/1/2014 First
66 8,912,359 119 5/1/2017 First
74 7,872,296 113 11/1/2016 First
83 6,786,765 118 4/1/2017 First
104 5,000,000 117 3/1/2017 First
114 4,537,912 117 3/1/2017 First
137 3,487,000 119 5/1/2017 First
141 3,300,000 119 5/1/2017 First
149 2,994,161 118 4/1/2017 First
$687,107,206
Sequence Monthly Payment Administrative Fee Rate(2) Primary Servicing Fee Rate
-------- --------------- -------------------------- --------------------------
1 1,932,122 0.03063% 0.01000%
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
12 367,335 0.03063% 0.01000%
12.1
12.2
14 241,791 0.05563% 0.03500%
16 224,408 0.03063% 0.01000%
16.1
16.2
23 54,359 0.03063% 0.01000%
23.1
23.2
24 38,441 0.03063% 0.01000%
25 33,442 0.03063% 0.01000%
25.1
25.2
41 83,742 0.03063% 0.01000%
48 74,806 0.03063% 0.01000%
49 65,582 0.03063% 0.01000%
51 61,958 0.03063% 0.01000%
54 62,675 0.03063% 0.01000%
55 60,164 0.03063% 0.01000%
66 52,759 0.03063% 0.01000%
74 46,831 0.08063% 0.06000%
83 39,553 0.07063% 0.05000%
104 30,137 0.03063% 0.01000%
114 27,326 0.03063% 0.01000%
137 20,040 0.03063% 0.01000%
141 19,237 0.03063% 0.01000%
149 17,450 0.08063% 0.06000%
Sequence Master Servicing Fee Rate Ownership Interest Cross-Collateralized Loans
-------- ------------------------- ------------------ --------------------------
1 0.02000% Various No
1.1 Pledge
1.2 Fee
1.3 Fee
1.4 Fee
1.5 Fee
1.6 Leasehold
1.7 Fee
1.8 Fee
1.9 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 Pledge
1.19 Pledge
1.20 Pledge
12 0.02000% Fee No
12.1 Fee
12.2 Fee
14 0.02000% Fee No
16 0.02000% Fee No
16.1 Fee
16.2 Fee
Fee BACM 2007-2 A
23 0.02000% Fee BACM 2007-2 A
23.1 Fee
23.2 Fee
24 0.02000% Fee BACM 2007-2 A
25 0.02000% Fee BACM 2007-2 A
25.1 Fee
25.2 Fee
41 0.02000% Fee No
48 0.02000% Fee No
49 0.02000% Fee No
51 0.02000% Fee No
54 0.02000% Leasehold No
55 0.02000% Fee No
66 0.02000% Fee No
74 0.02000% Fee No
83 0.02000% Fee No
104 0.02000% Fee No
114 0.02000% Fee No
137 0.02000% Fee No
141 0.02000% Fee No
149 0.02000% Fee No
Sequence Original Amortization (months) ARD Loan Grace Period Loan Group
-------- ------------------------------ -------- ------------ ----------
1 0 No 0 1
1.1 1
1.2 1
1.3 1
1.4 1
1.5 1
1.6 1
1.7 1
1.8 1
1.9 1
1.10 1
1.11 1
1.12 1
1.13 1
1.14 1
1.15 1
1.16 1
1.17 1
1.18 1
1.19 1
1.20 1
12 360 No 0 1
12.1 1
12.2 1
14 0 No 0 1
16 0 No 5 2
16.1 2
16.2 2
5 1
23 0 Yes 5 1
23.1 1
23.2 1
24 0 Yes 5 1
25 360 No 5 1
25.1 1
25.2 1
41 360 No 5 1
48 300 Xx 0 0
00 000 Xx 0 2
51 360 Xx 0 0
00 000 Xx 0 1
55 360 Xx 0 0
00 000 Xx 5 1
74 360 Xx 0 0
00 000 Xx 5 1
104 360 No 5 1
114 360 No 5 1
137 360 No 5 1
141 360 No 5 1
149 360 No 5 1
1) For mortgage loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the mortgage loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
2) Administrative Fee Rate includes the Master Servicer Fee Rate (including,
where applicable, the Bridger excess fees); the Trustee Fee Rate; and the
Primary Servicing Fee Rate (which, for some HFF, LJ Melody-GEMSA and
Northmarq Capital serviced loans includes the subservicing fee).
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the
representations and warranties attached hereto, the Seller hereby represents and
warrants that, as of the date specified below or, if no such date is specified,
as of the Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer
of the Mortgage Loans to the Purchaser, the Seller had good title to, and was
the sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances. The
Seller has validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance; provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
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 Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; 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 (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage 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 Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if
any, related to and delivered in connection with each Mortgage Loan establishes
and creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no 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
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject 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: (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 policy referred to in Paragraph 8 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 value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (except in the case of a Mortgage Loan
maintained on the records of MERS, including endorsement and delivery of the
related Mortgage Note to the Purchaser and recording of the related Assignment
of Mortgage in favor of Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title 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, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary including,
without limitation, foreclosure or similar proceedings (as applicable for the
jurisdiction where the related Mortgaged Property is located) and, subject to
the exceptions set forth in Paragraph 13 below, enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, 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, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
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 another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar 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), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating and
obligated to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the 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 greater than or equal to gross
rentals for at least (A) 12 months or (B) for the restoration period plus 180
days. 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 Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available and was required to be maintained by
FEMA, 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 (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
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 thirty (30) days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. For each Mortgaged Property
located in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which
indicated a PML of less than 20% was prepared, based on a 450 or 475-year look
back with a 10% probability of exceedance in a 50-year period, at origination
for such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage. If the Mortgaged Property is located in
Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina or South Carolina such Mortgaged Property is
insured by windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
full insurable value, or 100% of the replacement cost, of the improvements
located on the related Mortgaged Property. With respect to each Mortgage Loan
that has a principal balance as of the origination date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability. With respect to
each Mortgage Loan, the related Mortgage requires that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy will (or,
at the lender's option, will) be applied either to the repair or restoration of
the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). At origination, the Seller received evidence that each
Mortgaged Property was insured by a commercial general liability policy in an
amount not less than $1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes
or assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the
subject Mortgage Loan no Borrower under a Mortgage Loan was a debtor in any
state or federal bankruptcy, insolvency or similar proceeding. As of the Closing
Date, to the Seller's knowledge, no Borrower under a Mortgage Loan was a debtor
in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered 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 material changes reflected
in written instruments which are a part of the related Mortgage
File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related
Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related Fee Interest and
Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not
been terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage
Loan. Furthermore, such Ground Lease further provides that no
notice of termination given under such Ground Lease is effective
against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such
Ground Lease;
(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 notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised,
would cause the term of such Ground Lease to extend not less than
twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result
of any default or as a result of a rejection of such Ground Lease
in a bankruptcy proceeding involving the related Borrower unless
the mortgagee under such Mortgage Loan fails to cure a curable
default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with
respect to the leasehold interest will be applied either (i) to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having
the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such
Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Borrower, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, 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.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination,
each Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (a)
payment in full of all amounts due under the related Mortgage Loan or (b)
delivery of U.S. Treasury securities in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements, (b) the payment of a release price and, if required
by the related Mortgage Loan documents, prepayment consideration in connection
therewith or (c) the substitution of real property collateral upon the
satisfaction of certain legal and underwriting requirements; and provided,
further, that any Mortgage Loan may permit the unconditional release of one or
more unimproved parcels of land to which the Seller did not give any material
value in underwriting the Mortgage Loan. The release provisions in any Mortgage
Loan if exercised would not cause such Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance in an amount to make
all scheduled payments under the Mortgage Note either through and including the
maturity date of the loan or to the first date that the Borrower can prepay the
Loan without a prepayment premium (a) no earlier than two years following the
Closing Date and (b) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance,
then the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each
Mortgage Loan, the related originator inspected, or caused the inspection of,
the related Mortgaged Property.
33. No Material Default. To Seller's knowledge there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan, in any such case to the extent the same
materially and adversely affects the value of the Mortgage Loan and the related
Mortgaged Property; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in this Schedule II
or by the exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions (including but not limited
to existing and future mezzanine debt) mentioned in the related Mortgage Loan
Documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan
with a Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor impaired
property policy or pollution legal liability policy, then the Seller 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 to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain
standard provisions providing for recourse against the related Borrower, a
principal of such Borrower or an entity controlled by a principal of such
Borrower for damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the
related Borrower in the Mortgaged Property securing each Mortgage Loan includes
a fee simple and/or leasehold estate or interest in real property and the
improvements thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage Loans
by the Seller or a sub-servicer retained by the Seller has been legal, proper
and prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits
and payments relating to a Mortgage Loan were under the control of the
originator and all amounts required to be deposited by each Borrower were
deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; 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 Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of
the date of its origination and to the Seller's knowledge as of the Cut-off
Date, each Mortgage Loan complied in all material respects with, or was exempt
from, all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
SCHEDULE IIA
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
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REP NO. LOAN NO. LOAN NAME EXPLANATION
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4
Lien; Valid Assignment 49150 Austin Student Housing The related Mortgagor has
Portfolio incurred additional mezzanine
loan indebtedness, which is
subject to an intercreditor
agreement.
51006 Beacon Seattle & DC There is no mortgage recorded
Portfolio with respect to the
Non-Mortgage Properties.
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5 51006 Beacon Seattle & DC There is no mortgage/assignment
Assignment of Leases Portfolio of leases recorded with respect
to the Non-Mortgage Properties.
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8 51006 Beacon Seattle & DC There is no title insurance
Title Insurance Portfolio with respect to the
Non-Mortgage Properties (there
is, however, UCC insurance
with respect to any pledged
interests).
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10 51006 Beacon Seattle & DC The security with respect to
Mortgage Provisions Portfolio the Non-Mortgage Properties is
not a mortgage.
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12
Environmental Conditions 00000 Xxxxxxxx Xxxxx A Phase II Dry Cleaning
Facility Environmental
Screening was recommended to
address the area of
environmental uncertainty
regarding the historical dry
cleaning operations at the
property at the One Hour
Martinizing/Comet Cleaners
located at 0000 X. Xxxx Xxxx
Xx. tenant space and the
possible Xx Xxxxxxx Enco
gasoline service station. In
lieu of this Phase II,
environmental insurance was
provided.
To mitigate the potential of
environmental liability caused
by the historical dry cleaning
operations have impacted the
property at the One Hour
Martinizing/Comet Cleaners
located at 0000 X. Xxxx Xxxx
Xx., One Hour Cleaners in
Suite 2940, the possible Xx
Xxxxxxx Enco gasoline service
station that may have been
located on the property, and
the present use and future use
of the property, a Real Estate
Environmental Liability (REEL)
environmental insurance policy
which is issued by Zurich and
the Policy Term of 10 years
was secured by the Borrower.
Bear Xxxxxxx Commercial
Mortgage, Inc. and its
successors and assigns is
named as "additional insured"
on the REEL Policy. The limit
of liability on this REEL
Policy is $2,000,000, with a
$10,000 deductible. The REEL
Policy will remain in effect
during the loan term.
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14
Insurance 49092 Rite Aid Shelby and The related Mortgagor does not
Coldwater maintain business interruption
insurance. Single tenant is
permitted to self insure and
must rebuild in the event of a
casualty. Furthermore this
loan is cross collateralized
with loan numbers 49148 and
49754 each of which are single
tenant properties with credit
tenants.
49754 ARC Walgreen's Carolina The loan documents (subject to
Puerto Rico Walgreen's maintaining an
investment grade rating) and
lease allow Walgreen's to self
insure. Walgreen's provided a
self insurance letter that
indicates that they maintain a
comprehensive program of self
insurance as required by the
lease. Perils included in
this property coverage are
flood, earthquake, terrorism,
toxic mold and windstorm
damage, including named
storms. Walgreen's has the
obligation to repair/rebuild
the property for damage caused
by fire or any other casualty
in which they are required to
carry insurance. There is no
rent abatement for damage
covered by insurance.
49148 ARC Walgreen's Guaynabo
Puerto The loan documents (subject to
Rico/ARC Eckerd's Walgreen's maintaining an
McConough investment grade rating) and
lease allow Walgreen's to self
insure. Walgreen's provided a
self insurance letter that
indicates that they maintain a
comprehensive program of self
insurance as required by the
lease. Perils included in
this property coverage are
flood, earthquake, terrorism,
toxic mold and windstorm
damage, including named
storms. Walgreen's has the
obligation to repair/rebuild
the property for damage caused
by fire or any other casualty
in which they are required to
carry insurance. There is no
rent abatement for damage
covered by insurance. The
lease does not require tenant
to provide business
interruption insurance
and Lender has waived business
interruption coverage for the
Eckerd property. Mitigants
include: 1) this property is
cross-collateralized with the
Walgreen's Guaynabo;
2) strong rebuild lease
provision, and 3) no rent
abatement in the event of a
casualty from fire or other
disaster.
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18 c 51006 Beacon Seattle & DC The ground lease is assignable
Ground lease Portfolio without consent in connection
with a foreclosure or
assignment or deed in lieu
thereof, but further
assignments must comply with
the terms of the ground lease.
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18 i 51006 Beacon Seattle & DC Under the terms of the Ground
Portfolio Lease and the Mortgage, taken
together, (1) any related
casualty insurance proceeds
will be applied either to the
repair or restoration of all
or part of the Ground Lease
Property, or to the payment of
the outstanding principal
balance of the Loan together
with any accrued interest
thereon; provided, that if the
Ground Lease terminates as a
result of such casualty, (A)
the ground lessor shall be
entitled to a portion of the
insurance proceeds sufficient
to remove any improvements
thereon that have not been
repaired, to return the Ground
Lease Property to grade level
and to remove any debris
therefrom, (B) the ground
lessor or Leasehold Borrower
(as the case may be) shall be
awarded any obligations of the
other party arising from such
other party's default, if any,
under the Ground Lease, and
(C) the balance of such
insurance proceeds shall be
paid to Lender to the extent
of the unpaid balance, if any,
of the Loan, provided that if
the Loan is secured by other
real property, the insurance
proceeds shall only be applied
against the unpaid principal
amount of the Loan allocated
to the Ground Lease Property,
as reasonably determined by
the "Trustee of Insurance" (as
defined in the Ground Lease)
based upon the fair market
value of the real property
securing the Loan; and (2) any
condemnation award received by
Leasehold Borrower will be
applied either to the repair
or restoration of all or part
of the Ground Lease Property,
or to the payment of the
outstanding principal balance
of the Loan together with any
accrued interest thereon;
provided, that (A) any such
award shall be allocated to
the ground lessor and
Leasehold Borrower based upon
their respective interests in
the Ground Lease Property, and
the ground lessor shall be
entitled to receive the value
of the Ground Lease Property
taken, considered as
unimproved and unencumbered by
the Ground Lease, plus the
present value of the
reversionary interest in the
"Building" (as defined in the
Ground Lease), and Leasehold
Borrower shall be entitled to
the balance of the award, and
(B) if the Ground Lease
terminates as a result of such
casualty, such award shall be
applied in the same manner as
insurance proceeds are applied
in subsection (1)(A), (B) and
(C) above, except that the
ground lessor's portion of the
award (as determined in
accordance with subsection
(2)(A) above) shall be paid to
ground lessor and not to
Lender.
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19 51006 Beacon Seattle & DC The security with respect to
Qualified Mortgage Portfolio the Non-Mortgage Properties is
not a mortgage.
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22 51006 Beacon Seattle & DC The Market Square Property, a
Legal Proceedings Portfolio Non Mortgage Property, has a
lis pendens which was filed 3
years ago by the joint venture
property.
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23
Other Mortgage Liens 49150 Austin Student Housing The related Mortgagor has
Portfolio incurred additional mezzanine
loan indebtedness, which is
subject to an intercreditor
agreement.
51006 Beacon Seattle & DC The Non-Mortgage Properties
Portfolio are encumbered by pre-existing
debt. No additional debt or
refinancing is permitted with
lender's consent.
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28
Releases/Substitution of 48595 Investcorp Industrial The Loan provides for the
Mortgaged Property release of one or more
properties upon payment of
125% (Cheshire Property) and
110% (North Haven Property) of
the allocated loan amount with
yield maintenance and
achieving a 1.10x DSCR and 80%
LTV.
In addition, Borrower has the
ability to release a parcel of
the North Haven Property that
contains a vacant building.
Borrower must satisfy certain
conditions for the release
including, but not limited to,
Property achieving a 1.10x
DSCR, an 80% LTV and the
payment of at least 100% of
the allocated loan amount for
the vacant building parcel.
No "downgrade letter is also
required for the release.
49092, Rite Aid Shelby and These Loans are cross
00000, Xxxxxxxxx - Xxxxxxxxx collateralized. Xxx Xxxxx
00000 Xxxxxxxx and Eckerds - Collateralization Agreement
Walgreens Carolina and related loan documents
permit partial releases of
Properties provided certain
conditions are met including
payment of 125% of the
allocated loan amount (partial
defeasance is only permitted)
and achieving a 1.32x DSCR and
80% LTV.
49150 Austin Student Housing The Loan provides for partial
Portfolio defeasance in connection with
the release of certain
property in an amount equal to
115%, subject to certain DSCR
and LTV tests set forth in the
loan documents.
00000 Xxxxxxxxxx Xxxx The Loan provides for the
release of an outparcel.
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33
Due on Sale 49150 Austin Student Housing Tenant in common interests are
Portfolio transferable on predetermined
conditions set forth in the
loan documents, including
payment of an assumption fee,
experience and credit
requirements, and Rating
Agency approval. The related
Mortgagor has incurred
additional mezzanine loan
indebtedness, which is subject
to an intercreditor
agreement.
49799 Radisson Phoenix Tenant in common interests are
transferable on predetermined
conditions set forth in the
loan documents, including
payment of an assumption fee,
experience and credit
requirements, and Rating
Agency approval.
49918 Georgetown Apartments Tenant in common interests are
transferable on predetermined
conditions set forth in the
loan documents, including
payment of an assumption fee,
Lender consent and Rating
Agency approval.
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35 51006 Beacon Seattle & DC The JV Entities (the direct
SPE Portfolio owners of the Market Square
and Washington Mutual
Properties) are not SPEs and
their organizational documents
do not require them to be
SPEs. However, the Borrower
has covenanted that they will
comply with the SPE covenants
in the loan documents and the
organizational documents of
the owners of the JV entities
are SPEs. There were no
representations and no
diligence with respect to the
JV Entities.
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42
Non-Recourse Exceptions 47941 Grand D'Iberville Non-recourse provisions go to
the related Mortgagor and to
EPT Downreit, Inc., but not to
a "natural person".
51006 Beacon Seattle & DC The loan is recourse to the
Portfolio borrower. A guarantor (not a
natural person) has
indemnified for losses in the
event of a misappropriation of
distributions as to the
Non-Mortgage Properties and
for other matters relating to
the Market Square Property
encumbrance.
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44 51006 Beacon Seattle & DC The security with respect to
Fee Simple Portfolio the Non-Mortgage Properties is
not a mortgage.
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List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
[OR PLL POLICIES]
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LOAN NO. LOAN NAME
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