MORTGAGE LOAN PURCHASE AGREEMENT between MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC as Seller and BANC OF AMERICA MERRILL LYNCH COMMERCIAL MORTGAGE INC. as Purchaser Dated October 7, 2015

between

 

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC
as Seller

 

and

 

BANC OF AMERICA ▇▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL MORTGAGE INC.
as Purchaser

 

 

Mortgage Loan Purchase Agreement (this “Agreement”), dated October 7, 2015, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC (“Seller”) and Banc of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Mortgage Inc. (“Purchaser”).

 

Seller agrees to sell, and Purchaser agrees to purchase, certain mortgage loans listed on Exhibit 1 hereto (the “Mortgage Loans”), each of which is evidenced by one or more related notes or other evidence of indebtedness (each a “Mortgage Note”) evidencing the indebtedness of the related obligor under the related Mortgage Loan (each a “Mortgagor”).  Purchaser will convey the Mortgage Loans to a trust (the “Trust”) created pursuant to a Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”), to be dated as of October 1, 2015, between Purchaser, as depositor, ▇▇▇▇▇ Fargo Bank, National Association, as master servicer (the “Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as special servicer (the “Special Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”).  In exchange for the Mortgage Loans and certain other mortgage loans to be purchased by Purchaser (collectively the “Other Mortgage Loans”), the Trust will issue to the Depositor pass-through certificates to be known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust 2015-C25, Commercial Mortgage Pass-Through Certificates, Series 2015-C25 (the “Certificates”).  The Certificates will be issued pursuant to the Pooling and Servicing Agreement.

 

Capitalized terms used herein but not defined herein shall have the meanings assigned to them in the Pooling and Servicing Agreement.

 

The Class A-1, Class A-2, Class A-SB, Class A-3, Class A-4, Class A-5, Class X-A, Class X-B, Class X-D, Class A-S, Class B, Class C and Class D Certificates (the “Public Certificates”) will be sold by Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, CIBC World Markets Corp. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC, as underwriters (in such capacities, the “Underwriters”), pursuant to an Underwriting Agreement, between Purchaser, Bank of America, National Association and the Underwriters, dated as of the date hereof (the “Underwriting Agreement”), and the Class E, Class F, Class G, Class V and Class R Certificates (the “Private Certificates”) will be sold by Purchaser to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as initial purchasers (in such capacities, the “Initial Purchasers”), pursuant to a Certificate Purchase Agreement, between Purchaser, Bank of America, National Association and the Initial Purchasers, dated as of the date hereof (the “Certificate Purchase Agreement”).  The Underwriters will offer the Public Certificates for sale publicly pursuant to a Prospectus dated October 7, 2015, as supplemented by a Prospectus Supplement dated the date hereof (together, the “Prospectus Supplement”), and the Initial Purchasers will offer the Private Certificates for sale in transactions exempt from the registration requirements of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated the date hereof (the “Final PPM”) and a preliminary version thereof dated September 28, 2015 (as supplemented by the preliminary private placement memorandum supplements, dated October 1, 2015 and October 5, 2015, the “Preliminary PPM”).

 

In consideration of the mutual agreements contained herein, Seller and Purchaser hereby agree as follows:

 

 

 

 

 

 

 

 

Custodian (on behalf of the Trustee), the Special Servicer, to submit, or to cause the Custodian to submit for recording, at the expense of Seller, any mortgage loan documents required to be recorded as described in the Pooling and Servicing Agreement and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee (or the Custodian on its behalf)).  Seller agrees to reasonably cooperate with the Custodian, the Trustee and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation.  The parties hereto agree that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is one-hundred eighty (180) days following the delivery of notice of such absence to Seller, but in no event earlier than eighteen (18) months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan.  The Custodian shall submit such documents for recording, at Seller’s expense, after the periods set forth above, provided, the Custodian shall not submit such assignments for recording if Seller produces evidence that it has sent any such assignment for recording and certifies that Seller is awaiting its return from the applicable recording office.  In addition, not later than the thirtieth (30^th) day following the Closing Date, Seller shall deliver to the Trustee (or the Custodian on its behalf) each of the remaining documents or instruments specified in Section 2.2 hereof (with such exceptions as are permitted by this Section 2) with respect to each Mortgage Loan (each, a “Mortgage File”).  (Seller acknowledges that the term “without recourse” does not modify the duties of Seller under Section 5 hereof.)

 

 

 

 

 

delivered to the Trustee (or the Custodian on its behalf) a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;

 

 

 

 

 

 

 

 

 

 

 

 

 

by the Master Servicer, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement or (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Master Servicer on behalf of the Trustee, with a copy to be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan and the Pooling and Servicing Agreement (it being understood that Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Master Servicer (who shall forward a copy of such acknowledgement to the Custodian and the Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of Seller to assign all rights in and to the letter of credit hereunder including the right and power to draw on the letter of credit).  In the case of clause (B) above, the Master Servicer has acknowledged that any letter of credit held by the Master Servicer shall be held in its capacity as agent of the Trust, and if the Master Servicer sells its rights to service the applicable Mortgage Loan, the Master Servicer has agreed to assign the applicable letter of credit to the Trust or (with respect to any Specially Serviced Mortgage Loan) at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Master Servicer.  The Master Servicer has agreed to indemnify the Trust for any loss caused by the ineffectiveness of such assignment;

 

 

 

 

 

 

 

 

 

The original of each letter of credit referred to in clause 2.2.12 above shall be delivered to the Master Servicer or the Custodian (as the case may be) within ten (10) Business Days of the Closing Date.  In addition, a copy of any ground lease, space lease or air rights lease shall be delivered to the Master Servicer within thirty (30) days of the Closing Date.

 

“Officer’s Certificate” shall mean a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, any Senior Vice President, any Vice President, any Assistant Vice President, any Treasurer or any Assistant Treasurer.

 

Notwithstanding any of the foregoing to the contrary, with respect to any Non-Serviced Mortgage Loan, (A) the preceding document delivery requirements shall be met by the delivery by the Depositor of copies of the documents specified above (other than the Mortgage Notes (and all intervening endorsements) respectively evidencing such Non-Serviced Mortgage Loan with respect to which the originals shall be required), including a copy of the Non-Serviced Mortgage Loan Mortgage, and (B) the requirement to deliver any of the preceding documents in the name of the Trustee shall be met by the delivery of such documents in the name of the Non-Serviced Mortgage Loan Trustee for the benefit of, among others, the Trustee, as holder of such Non-Serviced Mortgage Loan.

 

 

 

 

true and complete copy of the original thereof submitted for recording), to the Trustee within such forty-five (45) day period, Seller shall then deliver within ninety (90) days after the Closing Date the recorded document (or within such longer period after the Closing Date as the Trustee may consent to, which consent shall not be unreasonably withheld so long as Seller is, as certified in writing to the Trustee no less often than monthly, in good faith attempting to obtain from the appropriate county recorder’s office such original or photocopy).

 

 

 

 

 

 

any tax bills, any Appraisal, any environmental report, any engineering report, third-party management agreements, any asset summary and financial information on the Borrower/sponsor and any guarantors.  Notwithstanding the foregoing, Seller shall not be required to deliver any draft documents, or any attorney-client communications that are privileged communications or constitute legal or other due diligence analyses or attorney work product, or internal communications of Seller or its affiliates among themselves or with their respective attorneys, or credit underwriting or other analyses or data (and, if any such items are received, they shall be returned and any copies thereof destroyed).  Delivery of any of the foregoing documents to any sub-servicer shall be deemed a delivery to the Master Servicer and satisfy Seller’s obligations under this subparagraph.

 

 

 

 

 

A.    All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the following property:  the Mortgage Loans identified on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies, all distributions with respect thereto payable after the Cut-off Date, all substitute or replacement Mortgage Loans and all distributions with respect thereto, and the Mortgage Files;

 

B.    All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (A) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and

 

C.    All cash and non-cash proceeds of the collateral described in clauses (A) and (B) above.

 

 

 

 

 

 

constitute a waiver of such omission or defect or of Purchaser’s or its successors’ and assigns’ rights in respect thereof pursuant to Section 5 hereof.

 

 

 

 

 

 

 

 

 

 

 

 

engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement.

 

 

 

 

 

 

materially and adversely affect the transfer of the Mortgage Loans to Purchaser or the execution or delivery by, or enforceability against, Seller of this Agreement or have an effect on the financial condition of Seller that would materially and adversely affect the ability of Seller to perform its obligations under this Agreement.

 

 

 

 

 

Reporting Information required to be disclosed by Seller pursuant to this Section 4.1.8 on Form 8-K, Form 10-D or Form 10-K within two (2) Business Days following the Purchaser’s request for such disclosure language.  In connection with providing such disclosure language and Seller’s reporting obligations under Item 1119 of Regulation AB, upon reasonable request by Seller, Purchaser shall provide Seller with a list of all parties to the Pooling and Servicing Agreement and any Servicing Function Participant with respect to which it has received notice pursuant to the terms of the Pooling and Servicing Agreement. The obligation of the Seller to provide the above-referenced disclosure materials shall be suspended (for so long as neither the Trust nor, with respect to any Serviced Companion Loan related to a Serviced Pari Passu Mortgage Loan sold to the Trust by the Seller, the trust in the related Other Securitization, is subject to the reporting requirements of the Exchange Act), as to any fiscal year, upon the Certificate Administrator or the Trustee, as applicable, filing the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act as to that fiscal year in accordance with Section 13.8 of the Pooling and Servicing Agreement or the reporting requirements with respect to the Trust under the Exchange Act have otherwise been automatically suspended; provided, that for the avoidance of doubt, the suspension of such information reporting does not apply to Seller Reporting Information that is required to be provided for the fiscal year prior to suspension of the Trust’s reporting requirements under the Exchange Act (including Additional Form 10-K Disclosure required to be disclosed on  the Form 10-K related to the fiscal year preceding the year in which the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act was filed).  The Purchaser shall provide the Seller with notice (which notice may be sent via facsimile or by email) if the Certificate Administrator or the Trustee, as applicable, does file the form necessary to be filed with the Commission to suspend the Trust’s reporting obligations under the Exchange Act pursuant to Section 13.8 of the Pooling and Servicing Agreement.  The Seller hereby acknowledges that the information to be provided by it pursuant to this Section will be used in the preparation of reports meeting the reporting requirements of the Trust under Section 13(a) and/or Section 15(d) of the Exchange Act.

 

The Seller hereby further agrees that with respect to any Serviced Companion Loan that is deposited into an Other Securitization, it shall, to the extent required under Section 13.2(c) of the Pooling and Servicing Agreement, (i) pay or cause to be paid the out-of-pocket cost (including any reasonable attorney fees) of providing the information, opinion(s) of counsel, certifications and indemnification agreement(s) to the related Other Depositor by or on behalf of the Master Servicer, the Special Servicer, the Trustee, the Custodian or the Certificate Administrator pursuant to Section 13.2(c) of the Pooling and Servicing Agreement and (ii) take all actions reasonably requested of it by the related Other Depositor to enable such Other Securitization to comply with Regulation AB. 

 

 

 

not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Prospectus Supplement.  The Underwriters and Initial Purchasers are intended third-party beneficiaries of the provisions set forth in this Section 4.1.9.

 

To induce Purchaser to enter into this Agreement, Seller hereby covenants that the foregoing representations and warranties and those set forth on Exhibit 2 hereto, subject to the exceptions set forth in Schedule 2-A to Exhibit 2, will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.

 

Each of the representations, warranties and covenants made by Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue in full force and effect notwithstanding any restrictive or qualified endorsement on the Mortgage Notes.

 

 

 

 

 

 

 

 

municipal government agency having jurisdiction over Purchaser or its assets, which violation could materially and adversely affect the condition (financial or otherwise) or the operation of Purchaser or its assets or could materially and adversely affect its ability to perform its obligations and duties hereunder.

 

 

 

 

To induce Seller to enter into this Agreement, Purchaser hereby covenants that the foregoing representations and warranties will be true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date.

 

Each of the representations and warranties made by Purchaser pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.

 

 

 

 

 

adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan or (iii) the defect or breach causes the Mortgage Loan to fail to be a “qualified mortgage” as defined in Section 860G(a)(3) of the Code (any such defect described in the preceding clause (i), (ii) or (iii), a “Material Document Defect” and any such breach described in the preceding clause (i), (ii) or (iii), a “Material Breach”), the Pooling and Servicing Agreement requires any party thereunder that determines such Material Document Defect or Material Breach exists, to promptly so notify Seller, among others, in writing.  Seller may or, following receipt of a request to cure the related  Material Document Defect or Material Breach as provided under the Pooling and Servicing Agreement by a party thereto (a “Cure Request”), Seller shall, not later than ninety (90) days from Seller’s receipt of the notice of, and a Cure Request with respect to, such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or cured in all material respects within such ninety (90) day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but Seller is diligently attempting to effect such correction or cure, as certified by Seller in an Officer’s Certificate delivered to the Trustee and the Custodian, then the cure period will be extended for an additional ninety (90) days unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as described in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” in the Pooling and Servicing Agreement and (y) the Material Document Defect was identified in a certification delivered to Seller by the Custodian (on behalf of the Trustee) pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than ninety (90) days prior to the Seller’s receipt of the notice of such Material Document Defect.  The parties acknowledge that neither delivery of a certification or schedule of exceptions to Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or otherwise nor possession of such certification or schedule by Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by Seller, the Master Servicer or the Special Servicer of any Material Document Defect listed therein.

 

 

 

substitution must occur no later than eighty-five (85) days from the date of determination of the existence of a Material Document Defect or Material Breach as determined in Section 5.2 hereof.  Seller agrees that any substitution shall be completed in accordance with the terms, conditions and requirements of the Pooling and Servicing Agreement, including the payment of a substitution shortfall amount equal to the excess, if any, of the applicable Purchase Price for the Mortgage Loan or REO Mortgage Loan to be replaced, over the Stated Principal Balance of the applicable Qualifying Substitute Mortgage Loan (together with any additional amounts specified in the Pooling and Servicing Agreement).

 

 

 

 

enforcing any remedies against the other’s Primary Collateral but may exercise remedies against the Primary Collateral securing their respective Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the 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 Mortgage Loan or Mortgage Loans held by such party, then both parties shall forbear from exercising such remedies until the loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with the Pooling and Servicing Agreement to remove the threat of impairment as a result of the exercise of remedies.  Any reserve or other cash collateral or letters of credit securing the Crossed Mortgage Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding principal balances.  All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof.  The Mortgagors set forth on Schedule A hereto are intended third-party beneficiaries of the provisions set forth in Section 5.4 and this Section 5.5.  The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.

 

 

 

 

nor shall such modification and workout change the Purchase Price due from Seller for any repurchase claim.  In the event of any such modification and workout, Seller shall be obligated to repurchase the Mortgage Loan as modified and the Purchase Price shall include any Workout Fee paid to the Special Servicer up to the date of repurchase plus the present value (calculated at the applicable Calculation Rate) of the Workout Fee that would have been payable to the Special Servicer in respect of such Mortgage Loan if the Mortgage Loan had performed in accordance with its terms to its Maturity Date, provided that no amount shall be paid by Seller in respect of any Workout Fee if a Liquidation Fee already comprises a portion of the Purchase Price or if the related Mortgagor has already paid such fee.  Seller is entitled to be notified promptly and in writing by the Special Servicer of any offer that it receives to purchase the applicable Mortgage Loan or related REO Property, each in connection with such liquidation.  Any sale of the related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the related REO Property, to a Person other than Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against Seller and (ii) representation or warranty of any kind (either expressed or implied) by Seller to or for the benefit of such Person.

 

 

 

 

 

 

 

 

 

 

 

 

provide upon receipt of such notice, written notice of such defeasance request to Seller or its assignee; and (ii) until such time as Seller provides written notice to the contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance Rights and Obligations shall be delivered to Seller pursuant to the notice provisions of the Pooling and Servicing Agreement.

 

 

 

 

 

 

 

 

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures.

 

 

 

 

 

 

 

 

 

Such opinion may express its reliance as to factual matters on, among other things specified in such opinion, the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement.

 

In rendering the opinions expressed above, such counsel may limit such opinions to matters governed by the federal laws of the United States and the corporate laws of the State of Delaware and the State of New York, as applicable.

 

 

 

 

 

 

 

 

certified copies of the charter, by-laws and certificate of good standing of Purchaser dated not earlier than thirty (30) days prior to the Closing Date.

 

 

 

 

 

 

 

 

order to effectuate the purpose and to carry out the terms of this Agreement and the Pooling and Servicing Agreement.

 

 

 

EACH PARTY HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.  EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.  WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY ASSIGNMENT.

 

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY HERETO 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 MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING INVOLVING SUCH CLAIMS IN ANY SUCH COURT; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE

 

 

ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

 

 

 

 

[Signature pages follow.]

 

IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed by their respective duly authorized officers on the date first above written.

 

	▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC
	By:	/s/ ▇▇▇▇ ▇▇▇
		Name: ▇▇▇▇ ▇▇▇
		Title:  Vice President

 

MSBAM 2015-C25 - MSMCH Mortgage Loan Purchase Agreement

 

 

EXHIBIT 1
MORTGAGE LOAN SCHEDULE

 

·	Mortgage Loan Seller

·	Loan Number

·	Property Name

·	Street Address

·

City

·

State

·	Date of Maturity

·	Cut-off Date Balance

·

Note Date

·	Original Term to Maturity or ARD

·	Remaining Term to Maturity or ARD

·	Original Amortization

·

Note Rate

·	ARD Loan (Yes/No)

·	Primary Servicing Fee Rate

·	Pari Passu Loan Primary Servicing Fee Rate

 

[See attached]

 

 

 

MSBAM 2015-C25 Mortgage Loan Schedule

MSMCH

 

Loan ID

Mortgage Loan Seller

Property Name

Cut-off Date Balance

Address

City

State

Note Date

Maturity  Date

Mortgage Rate

Original Term to Maturity (mos.)

Remaining Term to Maturity (mos.)

Original Amortization Term (mos.)

ARD (Yes/No)

Primary Servicing Fee Rate

Pari Passu Loan Primary Servicing Fee Rate

1

MSMCH

Herald Center

$115,000,000

▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇

▇▇▇ ▇▇▇▇

▇▇

12/20/2013

1/7/2024

4.510%

120

99

0

No

0.00500%

0.00000%

▇

▇▇▇▇▇

▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Astoria

$82,301,306

▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇

▇▇▇ ▇▇▇▇▇▇▇

▇▇

7/17/2015

8/6/2025

4.710%

120

118

360

No

0.00000%

0.00250%

4

MSMCH

Coastal Equities Retail Portfolio

$60,000,000

6/9/2015

7/1/2025

4.605%

120

117

360

No

0.00000%

0.00500%

4.01

MSMCH

Coastal Equities Retail Portfolio - Home Depot

$5,325,444

▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.02

MSMCH

Coastal Equities Retail Portfolio - Glenwood Plaza

$4,508,876

▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇

▇▇

4.03

MSMCH

Coastal Equities Retail Portfolio - ▇▇▇▇▇▇ Village

$4,473,373

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Dover

DE

4.04

MSMCH

Coastal Equities Retail Portfolio - Westown Square

$4,366,864

▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇

▇▇

4.05

MSMCH

Coastal Equities Retail Portfolio - Plaza North

$4,189,349

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇ ▇▇▇▇▇

IN

4.06

MSMCH

Coastal Equities Retail Portfolio - Mattatuck Plaza

$3,905,325

650 & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇

▇▇

4.07

MSMCH

Coastal Equities Retail Portfolio - Ahoskie Commons

$3,053,254

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.08

MSMCH

Coastal Equities Retail Portfolio - Athens Town Center

$2,840,237

▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇

▇▇▇▇▇▇

▇▇

4.09

MSMCH

Coastal Equities Retail Portfolio - Northeast Plaza

$2,840,237

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

4.10

MSMCH

Coastal Equities Retail Portfolio - Summer Commons

$2,343,195

▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.11

MSMCH

Coastal Equities Retail Portfolio - ▇▇▇▇▇▇▇▇▇ Marketplace

$2,307,692

▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇

▇▇

4.12

MSMCH

Coastal Equities Retail Portfolio - Boulevard Plaza

$2,201,183

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇

▇▇

4.13

MSMCH

Coastal Equities Retail Portfolio - Hungarybrook

$2,130,178

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇

▇▇

4.14

MSMCH

Coastal Equities Retail Portfolio - ▇▇▇▇▇▇▇▇ Park Plaza

$1,952,663

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

4.15

MSMCH

Coastal Equities Retail Portfolio - Market At Riverdale Bend

$1,775,148

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.16

MSMCH

Coastal Equities Retail Portfolio - Northland Plaza

$1,668,639

▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇ ▇▇▇▇▇▇▇▇

▇▇

4.17

MSMCH

Coastal Equities Retail Portfolio - Cordele Corners

$1,633,136

▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.18

MSMCH

Coastal Equities Retail Portfolio - Anniston Plaza

$1,491,124

▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇▇

▇▇

4.19

MSMCH

Coastal Equities Retail Portfolio - Centre Plaza

$1,420,118

▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Boulevard

Clinton

TN

4.20

MSMCH

Coastal Equities Retail Portfolio - Homosassa Square

$1,420,118

▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇

▇▇

4.21

MSMCH

Coastal Equities Retail Portfolio - Meeting Square Center

$1,065,089

▇▇▇ ▇. ▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇

4.22

MSMCH

Coastal Equities Retail Portfolio - Plank Plaza

$958,580

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇ ▇▇▇▇▇

▇▇

4.23

MSMCH

Coastal Equities Retail Portfolio - Laurens Plaza

$887,574

▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇

▇▇

4.24

MSMCH

Coastal Equities Retail Portfolio - Pelham Plaza

$710,059

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇▇

▇▇

4.25

MSMCH

Coastal Equities Retail Portfolio - ▇▇▇▇▇▇▇ Park Commons

$532,544

▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇▇

▇▇

5

MSMCH

Colorado Technology Center Portfolio

$59,050,000

7/10/2015

8/1/2025

4.640%

120

118

360

No

0.01500%

0.00000%

5.01

MSMCH

Colorado Technology Center Portfolio - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

$11,321,000

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.02

MSMCH

Colorado Technology Center Portfolio - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

$8,875,000

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.03

MSMCH

Colorado Technology Center Portfolio - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

$8,735,000

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.04

MSMCH

Colorado Technology Center Portfolio - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

$8,665,000

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.05

MSMCH

Colorado Technology Center Portfolio - ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

$8,595,000

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.06

MSMCH

Colorado Technology Center Portfolio - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇

$6,709,000

▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

5.07

MSMCH

Colorado Technology Center Portfolio - ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

$6,150,000

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

▇

▇▇▇▇▇

▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇

$54,440,000

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Hanover

MD

6/19/2015

7/1/2025

4.370%

120

117

360

No

0.00500%

0.00000%

19

MSMCH

Regency Oaks Apartments

$17,900,000

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇

▇▇

7/29/2015

8/1/2025

4.500%

120

118

360

No

0.00500%

0.00000%

22

MSMCH

Landmark Towers

$16,500,000

▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇

7/15/2015

8/1/2025

4.891%

120

118

360

No

0.03000%

0.00000%

24

MSMCH

Coca Cola Bottling Facility

$15,975,000

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇

▇▇

7/15/2015

8/1/2025

4.755%

120

118

0

No

0.00500%

0.00000%

25

MSMCH

Hibernia Apartments

$15,000,000

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇

▇▇

6/19/2015

7/1/2025

4.265%

120

117

360

No

0.00500%

0.00000%

▇▇

▇▇▇▇▇

▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments

$14,320,000

▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇ ▇▇▇▇

▇▇

6/29/2015

7/1/2022

4.490%

84

81

360

No

0.04500%

0.00000%

32

MSMCH

Brandemere Apartments

$12,150,000

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇

8/5/2015

9/1/2020

4.645%

60

59

0

No

0.00500%

0.00000%

▇▇

▇▇▇▇▇

▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Mini Storage

$7,100,000

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇

▇▇ ▇▇▇▇▇▇▇▇▇

▇▇

6/30/2015

7/1/2025

4.260%

120

117

0

No

0.06000%

0.00000%

43

MSMCH

Chenal Creek Shopping Center

$6,863,000

▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

▇▇▇▇▇▇ ▇▇▇▇

▇▇

8/19/2015

9/1/2030

5.505%

180

179

360

No

0.04500%

0.00000%

50

MSMCH

Trocam Plaza

$4,937,932

4650 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇ ▇▇▇▇▇

▇▇

7/31/2015

8/1/2025

4.650%

120

118

360

No

0.06500%

0.00000%

 

 

EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS

 

(1)

Whole Loan; Ownership of Mortgage Loans.  Each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan.  At the time of the sale, transfer and assignment to Purchaser, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to Seller), participation or pledge, and Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment or similar agreement.  Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Purchaser constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan.

(2)

Mortgage Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (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), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium 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 (ii) that certain provisions in such Mortgage Loan documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Mortgage Loan documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).   Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Mortgage Loan documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Mortgage Loan documents.

(3)	Mortgage Provisions.  The Mortgage Loan documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the

 

security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications.

(4)

Mortgage Status; Waivers and Modifications.  Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Mortgage Loan documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan.

(5)

Lien; Valid Assignment.  Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases from Seller constitutes a legal, valid and binding assignment from Seller.  Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor.  Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or with respect to those Mortgage Loans described in paragraph (34) hereof, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth in Schedule 2-A to this Exhibit 2 (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-off Date, to Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below).  Notwithstanding anything herein to the contrary, 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 is required in order to effect such perfection.

(6)

Permitted Liens; Title Insurance.  Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a “marked up” commitment, in each case binding

 

on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; and (f) if the related Mortgage Loan constitutes a Crossed Mortgage Loan, the lien of the Mortgage for the related Crossed Mortgage Loan or Crossed Mortgage Loans; provided that none of such items (a) through (f), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”).  Except as contemplated by clause (f) of the preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage.  Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid, no claims have been made by Seller thereunder and no claims have been paid thereunder. Neither Seller nor, to Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.

(7)

Junior Liens.  It being understood that B Notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Crossed Mortgage Loans, there are, as of origination, and to Seller’s knowledge, as of the Cut-off Date, no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics’ and materialmen’s liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing).  Except as set forth in Schedule 2-A to this Exhibit 2, Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor.

(8)

Assignment of Leases and Rents.  There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications.  The related Mortgage or related Assignment of Leases, subject to applicable law, provides that, upon an event of default under the

 

Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

(9)

UCC Filings.  If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, has submitted or caused to be submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents 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, as the case may be.  Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above.  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.

(10)

Condition of Property.  Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within six (6) months of origination of the Mortgage Loan and within twelve (12) months of the Cut-off Date.   An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve (12) months prior to the Cut-off Date.  To Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i) deferred maintenance for which escrows were established at origination and (ii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.

(11)

Taxes and Assessments.  All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or installments thereof, which could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon.  For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a) the date on which interest and/or penalties would first be

 

 

(12)

payable thereon and (b) the date on which enforcement action is entitled to be taken by the related taxing authority.   Condemnation.  As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there is no proceeding pending, and, to Seller’s knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.

(13)

Actions Concerning Mortgage Loan.  As of the date of origination and to Seller’s knowledge as of the Cut-off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f) the current principal use of the Mortgaged Property.

(14)

Escrow Deposits.  All escrow deposits and payments required to be escrowed with lender pursuant to each Mortgage Loan are in the possession, or under the control, of Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with lender under the related Mortgage Loan documents are being conveyed by Seller to Purchaser or its servicer.

(15)

No Holdbacks.  The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (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, the Mortgagor or other considerations determined by Seller to merit such holdback).

(16)

Insurance.  Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of loss form” or “all risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan documents and having a claims-paying or financial strength rating of at least “A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from ▇▇▇▇▇’▇ or “A-” from S&P (collectively the “Insurance Rating Requirements”), in an amount (subject to a customary deductible) not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary, or containing such

 

endorsements as are necessary, to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.   Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than twelve (12) months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, eighteen (18) months).   If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program.   If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms.   The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for loans originated for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.   An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of fifty (50) years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from ▇▇▇▇▇’▇ or “A-” by S&P in an amount not less than 100% of the SEL.   The Mortgage Loan documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Mortgage Loan, the lender (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.

 

 

 

 

(17)

All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee.  Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums.  All such insurance policies (other than commercial liability policies) require at least ten (10) days prior notice to the lender of termination or cancellation arising because of nonpayment of a premium and at least thirty (30) days prior notice to the lender of termination or cancellation (or such lesser period, not less than ten (10) days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.   Access; Utilities; Separate Tax Lots.  Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access  via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created.

(18)

No Encroachments.  To Seller’s knowledge based solely on surveys obtained in connection with origination and the lender’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy.  No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy.  No improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy.

(19)	No Contingent Interest or Equity Participation.  No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization

 

 

(20)

feature (except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by Seller.   REMIC.  The Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in the U.S. Department of Treasury regulations (the “Treasury Regulations”) Section 1.860G-2(f)(2) that treats certain defective mortgage loans as qualified mortgages), and, accordingly, (A) the issue price of the Mortgage Loan to the related Mortgagor at origination did not exceed the non-contingent principal amount of the Mortgage Loan and (B) either: (a) such Mortgage Loan is secured by an interest in real property (including buildings and structural components thereof, but excluding personal property) having a fair market value (i) at the date the Mortgage Loan was originated at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date or (ii) at the Closing Date at least equal to 80% of the adjusted issue price of the Mortgage Loan on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Mortgage Loan and (B) a proportionate amount of any lien that is in parity with the Mortgage Loan; or (b) substantially all of the proceeds of such Mortgage Loan were used to acquire, improve or protect the real property which served as the only security for such Mortgage Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Section 1.860G-2(a)(1)(ii) of the Treasury Regulations).  If the Mortgage Loan was “significantly modified” prior to the Closing Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Mortgage Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Mortgage Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto.  Any prepayment premium and yield maintenance charges applicable to the Mortgage Loan constitute “customary prepayment penalties” within the meaning of Section 1.860G-1(b)(2) of the Treasury Regulations.  All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.

(21)

Compliance with Certain Laws.  The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.

(22)

Authorized to do Business.  To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.

(23)

Trustee under Deed of Trust.  With respect to each Mortgage which is a deed of trust, as of the date of origination and, to Seller’s knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable

 

 

(24)

law or may be substituted in accordance with the Mortgage and applicable law by the related Mortgagee.   Local Law Compliance.  To Seller’s knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan and as of the Cut-off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) are insured by the Title Policy or a law and ordinance insurance policy or (ii) would not have a material adverse effect on the Mortgage Loan.  The terms of the Mortgage Loan documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws.

(25)

Licenses and Permits.  Each Mortgagor covenants in the Mortgage Loan documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to Seller’s knowledge based upon a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial and multifamily mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect.  The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.

(26)

Recourse Obligations.  The Mortgage Loan documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis) in any of the following events: (i) if any voluntary petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with (or, alternatively, solicited or caused to be solicited) other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) voluntary transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Mortgage Loan documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained by reason of Mortgagor’s (i) misappropriation of rents after the occurrence of an event of default under the Mortgage Loan; (ii) misappropriation of (A) insurance proceeds or condemnation awards or (B) security deposits or, alternatively, the failure of any security deposits to be delivered to lender upon foreclosure or action in lieu thereof (except to the

 

 

(27)

extent applied in accordance with leases prior to a Mortgage Loan event of default); (iii) fraud or intentional material misrepresentation; (iv) breaches of the environmental covenants in the Mortgage Loan documents; or (v) commission of intentional material physical waste at the Mortgaged Property.   Mortgage Releases.  The terms of the related Mortgage or related Mortgage Loan documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release, accompanied by principal repayment, or partial Defeasance (as defined in paragraph (32) below), of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Mortgage Loan, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (as defined in paragraph (32) below), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation.  With respect to any partial release under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Mortgage Loan within the meaning of Section 1.860G-2(b)(2) of the Treasury Regulations and (ii) would not cause the subject Mortgage Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or servicer can, in accordance with the related Mortgage Loan documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x).  For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property after the release is not equal to at least 80% of the principal balance of the Mortgage Loan outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions.   In the case of any Mortgage Loan, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan in an amount not less than the amount required by the loan-to-value ratio and other requirements of the REMIC Provisions and, to such extent, condemnation awards may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan.   No Mortgage Loan that is secured by more than one Mortgaged Property or that is a Crossed Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other

 

 

 

(28)

than in compliance with loan-to-value ratio and other requirements of the REMIC Provisions.   Financial Reporting and Rent Rolls.  Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis.

(29)

Acts of Terrorism Exclusion.  With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 and the Terrorism Risk Insurance Program Reauthorization Act of 2015 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.  With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Seller’s knowledge, do not, as of the Cut-off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.  With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the Mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms; provided, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Mortgage Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Mortgage Loan documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.

(30)

Due on Sale or Encumbrance.  Subject to specific exceptions set forth below, each Mortgage Loan contains a “due on sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Mortgage

 

 

(31)

Loan documents (which provide for transfers without the consent of the lender which are customarily acceptable to Seller lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Mortgage Loan documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan documents or a Person satisfying specific criteria identified in the related Mortgage Loan documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs (27) and (32) herein or the exceptions thereto set forth in Schedule 2-A to this Exhibit 2, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Serviced Companion Loan or Non-Serviced Companion Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan documents, (ii) purchase money security interests, (iii) any Crossed Mortgage Loan, as set forth on Appendix I to the Prospectus Supplement or (iv) Permitted Encumbrances.  The Mortgage or other Mortgage Loan documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.   Single-Purpose Entity.  Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding.  Both the Mortgage Loan documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Principal Balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Mortgagor.  For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date Principal Balance equal to $5 million or less, its organizational documents or the related Mortgage Loan 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 Mortgaged 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 assets other than those related to its interest in and operation of such Mortgaged Property or Mortgaged Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Mortgage Loan

 

 

(32)

documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Crossed Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.   Defeasance.  With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for Defeasance as a unilateral right of the Mortgagor, subject to satisfaction of conditions specified in the Mortgage Loan documents; (ii) the Mortgage Loan cannot be defeased within two (2) years after the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Section 1.860G-2(a)(8)(ii) of the Treasury Regulations, the revenues from which will, in the case of a full Defeasance, be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date, and if the Mortgage Loan permits partial releases of real property in connection with partial Defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to the lesser of (a) 110% of the allocated loan amount for the real property to be released and (b) the outstanding principal balance of the Mortgage Loan; (iv) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Mortgage Note as set forth in clause (iii) above; (v) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by Defeasance collateral is required to be assumed (or the Mortgagee may require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor is required to provide an opinion of counsel that the Mortgagee has a perfected security interest in such collateral prior to any other claim or interest; and (vii) the Mortgagor is required to pay all rating agency fees associated with Defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses associated with Defeasance, including, but not limited to, accountant’s fees and opinions of counsel.

(33)	Fixed Interest Rates.  Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD loans and situations where default interest is imposed.

(34)

Ground Leases.  For purposes of the Mortgage Loan Purchase Agreement, a “Ground Lease” shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land (or, with respect to air rights leases, the air) and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency or similar leases for purposes of conferring a tax abatement or other benefit.

 

With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that:

(a)

The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction.  The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;

(b)

The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended or modified, or canceled or terminated by agreement of lessor and lessee, without the prior written consent of the lender, and no such consent has been granted by the Seller since the origination of the Mortgage Loan except as reflected in any written instruments which are included in the related Mortgage File;

(c)

The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either Mortgagor or the Mortgagee) that extends not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan, or ten (10) years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);

(d)

The Ground Lease either (i) is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii)  is subject to a subordination, non‑disturbance and attornment agreement to which the Mortgagee on the lessor’s fee interest in the Mortgaged Property is subject;

(e)

The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable (including pursuant to foreclosure) to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;

(f)

Seller has not received any written notice of material default under or notice of termination of such Ground Lease.  To Seller’s knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such

 

 

(g)

Ground Lease and to Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;   The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;

(h)

A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;

(i)	The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by Seller in connection with loans originated for securitization;

(j)

Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of a total or substantially total loss or taking as addressed in clause (k) below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;

(k)

In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and

(l)	Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.

(35)	Servicing.  The servicing and collection practices used by Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs.

 

(36)

Origination and Underwriting.  The origination practices of Seller (or the related originator if Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided, that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in this Exhibit 2.

(37)

No Material Default; Payment Record.  No Mortgage Loan has been more than thirty (30) days delinquent, without giving effect to any grace or cure period, in making required payments since origination, and as of the date hereof, no Mortgage Loan is more than thirty (30) days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date.  To Seller’s knowledge, there is (a) no material default, breach, violation or event of acceleration existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a) or clause (b), materially and adversely affects the value of the Mortgage Loan or the value, use or operation of the related Mortgaged Property, provided, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by Seller in this Exhibit 2.  No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Mortgage Loan documents.

(38)

Bankruptcy.  As of the date of origination of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-off Date, neither the Mortgaged Property (other than any tenants of such Mortgaged Property), nor any portion thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.

(39)

Organization of Mortgagor.  With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor in connection with the origination of such Mortgage Loan, the Mortgagor is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico.  Except with respect to any Crossed Mortgage Loan, no Mortgage Loan has a Mortgagor that is an Affiliate of another Mortgagor.  An “Affiliate” for purposes of this paragraph (39) means, a Mortgagor that is under direct or indirect common ownership and control with another Mortgagor.

(40)

Environmental Conditions.  A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within twelve (12) months prior to its origination date (or an update of a

 

 

(41)

previous ESA was prepared), and such ESA (i) did not identify the existence of Recognized Environmental Conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true:  (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related lender; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated, abated or contained in all material respects prior to the date hereof, and, if and as appropriate, a no further action, completion or closure letter or its equivalent, was obtained from the applicable governmental regulatory authority (or the Environmental Condition affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action or investigation is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the Environmental Condition was obtained from an insurer rated no less than “A-” (or the equivalent) by ▇▇▇▇▇’▇, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for the Environmental Condition and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action.  To Seller’s knowledge, except as set forth in the ESA, the Mortgage File or the Prospectus Supplement, there is no Environmental Condition at the related Mortgaged Property.   Appraisal.  The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within six (6) months of the Mortgage Loan origination date, and within twelve (12) months of the Closing Date.  The appraisal is signed by an appraiser who is a Member of the Appraisal Institute (“MAI”) and that (i) was engaged directly by the originator of the Mortgage Loan or Seller, or a correspondent or agent of the originator of the Mortgage Loan or Seller, and (ii) to Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

(42)	Mortgage Loan Schedule.  The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to the Mortgage Loan Purchase Agreement is true and correct in all material respects as of the Cut-off Date and

 

 

(43)	contains all information required by the Pooling and Servicing Agreement to be contained therein.   Cross-Collateralization.  No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Trust, except as set forth on Schedule 2‑B of this Exhibit 2.

(44)

Advance of Funds by Seller.  After origination, no advance of funds has been made by Seller to the related Mortgagor other than in accordance with the Mortgage Loan documents, and, to Seller’s knowledge, no funds have been received from any person other than the related Mortgagor or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Mortgage Loan documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s) into a lender-controlled lockbox if required or contemplated under the related lease or Mortgage Loan documents).  Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than contributions made on or prior to the date hereof.

(45)

Compliance with Anti-Money Laundering Laws.  Seller has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan, the failure to comply with which would have a material adverse effect on the Mortgage Loan.

 

For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein.

 

 

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
1	Herald Center	(1) Whole Loan; Ownership of Mortgage Loans		The related Mortgaged  Property also secures two additional promissory notes: promissory note A-1 in the original principal amount of $100,000,000 and promissory note A-3  in the original principal amount of $40,000,000, which have a combined original principal balance of $140,000,000.   In addition, on June 19, 2015, the related loan seller formed a REMIC with a start-up day of June 19, 2015 with respect to the Mortgage Loan and the foregoing additional promissory notes (collectively, the “Herald Center Loan Pair”), which created a separate, single-asset REMIC (the “Herald Center REMIC”), which REMIC issued (i) a single, uncertificated regular interest (the “Herald Center REMIC I Regular Interest”) with an initial principal amount equal to the then-outstanding principal balance of the Herald Center Loan Pair and (ii) a residual interest (the “Herald Center REMIC I Residual Interest”). A separate REMIC will be formed (the “Herald Center REMIC II”) will be formed pursuant to the co-lender agreement with respect to the Herald Center Loan Pair, and the Herald Center REMIC II will issue regular interests, each of which will have a principal balance equal to that of the similarly designated promissory note and will be entitled to principal and interest and any other amounts payable on the Herald Center REMIC I Regular Interest in the same proportion that the principal balance of such corresponding Herald Center promissory note bears to the aggregate principal balance of all of the Herald Center promissory notes. The  Herald Center REMIC II will also issue a residual interest. The Herald Center REMIC II Regular Interests being transferred to the Issuing Entity are Herald Center REMIC II Regular Interests A-2 and A-4. The loan seller will also contribute the Herald Center REMIC I Residual Interest and the Herald Center REMIC II Residual Interest to the Issuing Entity.
4	Coastal Equities Retail Portfolio	(1) Whole Loan; Ownership of Mortgage Loans		The related Mortgaged Property also secures six additional promissory notes: promissory note A-1 in the original principal amount of $25,000,000, promissory note A-2 in the original principal amount of $25,000,000, promissory note A-3 in the original principal amount of $25,000,000, promissory note A-6 in the original principal amount of $20,000,000,  promissory note A-7 in the original principal amount of $10,000,000, promissory note A-10 in the original principal amount of $4,000,000, which have a combined original principal balance of $109,000,000.
3	Roosevelt New Orleans Waldorf Astoria	(1) Whole Loan; Ownership of Mortgage Loans		The related Mortgaged Property also secures one additional promissory note: promissory note A-1 in the original principal amount of $82,500,000.
1	Herald Center	(6) Permitted Liens; Title Insurance		H & M ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇.▇. (“H & M”) has a right of first negotiation, pursuant to which, if at any time the landlord desires to sell all or a portion of the Mortgaged Property, the landlord is required to notify the tenant of the asking price and other terms of sale at least sixty days prior to putting the Mortgaged Property on the market or otherwise disclosing to third parties that the Mortgaged Property will come to market, and during such 60 day period the landlord may not negotiate with any other party for such sale.  In addition, H & M’s lease provides that in the event the landlord

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
				receives an unsolicited offer to sell all or any portion of the Mortgaged Property, the landlord must advise H & M of the existence and terms of the offer, and may not enter into a contract of sale until landlord has given H & M at least 30 days’ notice of the existence and terms of the offer.   If the tenant elects to buy the Mortgaged Property within such 30 day period, landlord is required to execute a purchase agreement with the tenant (and tenant must close on such purchase within 60 days, or if later, such closing date as landlord designates). If the tenant fails to notify the landlord of its desire to purchase the Mortgaged Property within such 30 day period, landlord may, for a period of 180 days after the expiration of such 30 day period,  sell the Mortgaged Property to any third party upon terms and conditions equal to 110% of the economic terms, or less favorable to the third party buyer, than those set forth in landlord’s notice, but in any event the effective purchase price payable by the third party shall not be less than 90% of effective purchase price had tenant elected to buy the Mortgaged Property, and any other concession granted to the third party buyer shall not be more than 90% of the concession in landlord’s notice.  Such provisions apply again if landlord fails to sell the Mortgaged Property during the sale period but do not apply to any subsequent sales of the Mortgaged Property after the first instance landlord sells the Mortgaged Property to a party that is not an affiliate of landlord.
50	Trocam Plaza	(6) Permitted Liens; Title Insurance		The Title Policy for the related Mortgage Loan insures, for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to current real property taxes and assessments, general and special not yet due. The title company did not include the language “not yet due and payable” in the Title Policy because a certified tax ▇▇▇▇ had already been sent out by the municipality, and once certified, the ▇▇▇▇ is payable. The next unpaid installment of taxes was not yet due as of the origination date. All taxes that were due as of the origination date were collected at closing.   In addition, tenant Panda Express has a right of first refusal to purchase the Mortgaged Property on the same terms and conditions of those set forth in any bona fide offer received by and acceptable to landlord.  Before making any sale or agreement to sell, landlord is required to give tenant notice in writing of the terms and conditions of such offer, and tenant may exercise its right of first refusal by written notice to landlord within 30 days after receipt of landlord’s notice. The tenant has entered into a subordination, non-disturbance and attornment agreement pursuant to which it has agreed that its right of first refusal shall not apply to the judicial or non-judicial foreclosure of the mortgage, the delivery of a deed in lieu of foreclosure of the mortgage, or the first subsequent transfer following any of the foregoing.
1	Herald Center	(7) Junior Liens		Subsequent  to  the  origination  date  of   the  related  Mortgage  Loan, Manufacturers and Traders Trust Company issued a revolving line of credit in the amount of up to $40,000,000 to certain equity owners of the related Mortgagor, secured by 49% of the indirect equity interests in the related Mortgagor and by 100% of the cash distributions of the Mortgagor.
1	Herald Center	(13) Actions Concerning Mortgage Loan		There is a pending suit involving the Mortgagor under the related Mortgage Loan.  On May 7, 2015, the Mortgagor and tenant H & M filed lawsuits against each other in the Supreme Court of New York, New York County.  The Mortgagor’s suit alleges that the H & M breached its lease by failing to pay certain construction costs related to the Mortgaged Property, resulting in the Mortgagor incurring damages and entitling it to a money judgment in no event less than

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
				$25,000,000.  H & M’s suit includes claims for potential defective landlord work and other store front work lease compliance issues resulting in total damages in excess of $13,000,000.  H & M’s suit also claims that, as a result of certain delays in the performance of the Mortgagor’s work obligations, H & M is entitled to an extension of the rent commencement date by 112 days, for a total abatement at the time of the suit filing of approximately $4,602,740, and continuing at a rate of approximately $41,096 per day.
1	Herald Center	(16) Insurance		The related Mortgaged Property is permitted to be insured by a syndicate of insurance companies and if there are 5 or more members of the syndicate, then (i) at least 75% of the coverage (and one hundred (100%) of the first layer of such insurance coverage) must be with carriers having a claims paying ability rating or an insurance financial strength rating, as applicable, of “A” or higher by Standard & Poor’s Ratings Service and (ii) the remaining twenty-five percent (25%) of the insurance coverage must be provided by insurance companies having a claims paying ability rating or an insurance financial strength rating, as applicable, of “BBB-” or higher by Standard & Poor’s Ratings Service.   The Mortgage Loan documents require business interruption insurance for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence and dispatch for at least twelve (12) months and containing an extended period of indemnity endorsement which provides that after the physical loss has been repaired, the continued loss of income will be insured until it either returns to the same level as prior to the loss, or the expiration of twelve (12) months from the date of repair/replacement and resumption of operations, whichever first occurs.   The Mortgage Loan documents require insurance proceeds in respect of a property loss to be applied to the payment of the outstanding principal balance of such Mortgage Loan only if (i) such proceeds exceed 50% of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon, and (ii) H & M terminates its lease.  In the event the lender is not obligated to make the insurance proceeds available for restoration and repair, and lender does not apply, or has agreed not to apply, such proceeds to the repayment of the outstanding principal balance of such Mortgage Loan, then lender may hold such insurance proceeds in an interest bearing account as additional collateral for the Mortgage Loan.  Upon the occurrence and during the continuance of an event of default, the lender has the right to apply such insurance proceeds to the repayment of the outstanding principal balance of such Mortgage Loan, together with any accrued interest thereon, in the order and priority the lender elects.  If no event of default is continuing, and the Mortgagor enters into a new lease in compliance with the requirements of the loan documents, the Mortgagor has the right to obtain such net proceeds for payment and reimbursement of tenant improvements related to such new lease, provided that certain conditions set forth in the loan documents to disbursement of such net proceeds are satisfied.    In addition, the exception re casualty proceeds set forth in the exception to Representation 34 below for Herald Center is also an exception to this representation.
6	Villas at ▇▇▇▇▇▇ ▇▇▇▇▇	(16) Insurance		The Mortgage Loan documents require business interruption insurance for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence and dispatch and containing an extended period of indemnity endorsement which provides that after the physical loss has

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
				been repaired, the continued loss of income will be insured until it either returns to the same level as prior to the loss, or the expiration of 6 months from the date of repair/replacement and resumption of operations, whichever first occurs.
Various	Various	(16) Insurance		The Mortgagor may obtain insurance from an insurer that does not meet the required rating if it obtains a “cut through endorsement” from an insurance company that meets the required rating.  The Mortgagor may also obtain insurance from an insurer that does not meet the required rating if a parent company that owns at least 51% of the insurer has the required rating and use of such insurance is approved by the rating agencies. In addition, the exceptions to Representation 29 set forth below are also exceptions to this representation.
1	Herald Center	(20) REMIC		In addition, with respect to the Herald Center Loan Pair, the Herald Center REMIC II Regular Interests A-2 and A-4 relating to promissory notes A-2 and A-4, will each constitute a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code (but determined without regard to the rule in Treasury Regulations Section 1.860G-2(f)(2)).
1	Herald Center	(25) Licenses and Permits		The Mortgaged Property does not yet have a permanent certificate of occupancy.
1	Herald Center	(26) Recourse Obligations		The Mortgage Loan documents contain provisions providing for recourse against the Mortgagor or guarantor for transfers, however, there is only recourse for transfers of either the Mortgaged Property or controlling equity interests in Mortgagor. There is no recourse for failure to deliver security deposits to lender upon a foreclosure or action in lieu thereof, to the extent that such security documents are applied in accordance with leases (even after an event of default).
5	Colorado Technology Center Portfolio	(26) Recourse Obligations		The Mortgage Loan documents (1) contain provisions providing for recourse against the Mortgagor or guarantor for voluntary transfers of the Mortgaged Property or equity interests in the Mortgagor made in violation of the Mortgage Loan documents, provided, that if such transfer does not result in a change in control, such recourse is for actual losses only and (2) contain provisions providing for recourse against the Mortgagor or guarantor for losses and damages sustained by reason of Mortgagor’s intentional and material written misrepresentation only and (3) exclude casualty from recourse for physical waste.
1	Herald Center	(29) Acts of Terrorism Exclusion		Terrorism insurance is required to be obtained from a provider which meets the ratings requirements generally applicable in the related loan documents, but if not available from such a provider, to the extent commercially feasible, borrower must obtain such insurance from the highest rated insurance company rated at least “BBB-” by Standard & Poor’s Ratings Services.
Various	Various	(29) Acts of Terrorism Exclusion		Terrorism insurance may be obtained from an insurer that is rated at least investment grade (i.e. “BBB-” by Standard & Poor’s Rating Services) and, in some cases, also rated “BBB-” by Fitch, Inc. and/or “Baa3” by ▇▇▇▇▇’▇ Investors Service Inc. (if such rating agencies rate any securitization of such mortgage loans and also rate the insurer).

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
6	Villas at ▇▇▇▇▇▇ ▇▇▇▇▇	(31) Single Purpose Entity		The Mortgagor is a Single Purpose Entity, except that its sole purpose is acting as borrower under the loan documents.  The sole member of the Mortgagor is also a Single Purpose Entity, except that its sole purpose is limited to owning and operating the Mortgaged Property and owning the membership interest in Mortgagor.
50	Trocam Plaza	(31) Single Purpose Entity		The Mortgagor, Trocam, LLC, a Nevada limited liability company, previously owned assets other than those related to its interest in and operation of the Mortgaged Property securing the related Mortgage Loan.  The proceeds of the related Mortgagor Loan were used to refinance a mortgage loan that was originated in 2005.  Prior to the origination of the prior mortgage loan in 2005, the Mortgagor owned a property adjacent to the Mortgaged Property.  In connection with the closing of the 2005 mortgage loan, the Mortgagor conveyed the adjacent property to its affiliate.
1	Herald Center	(32) Defeasance		The Mortgage Loan may be defeased prior to the date that is two years after the Closing Date; however, the Mortgage Loan may not be defeased prior to the date that is two years after the “start-up date” of the Herald Center REMIC.   In connection with a defeasance, the Mortgage Loan permits the pledge of other non-callable instruments (i.e. non-callable instruments other than United States “government securities” within the meaning of Section 1.860G 2(a)(8)(ii) of the Treasury Regulations), which if a securitization of the Mortgage Loan has occurred will not cause the REMIC trust formed pursuant to such securitization to fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code and will not result in a reduction, downgrade or withdrawal of the ratings of any class of securities issued in a securitization and are then being generally accepted by the rating agencies rating such securitization without reduction, downgrade or withdrawal of the ratings of any class of the related securities.
3	Roosevelt New Orleans Waldorf Astoria	(34) Ground Leases		(a) The Ground Lease (the “Master Ground Lease”) by and between The Administrators of the Tulane Educational Fund, a Louisiana limited liability company (“Master Ground Lessor”) and Belmont Commons, L.L.C., a Louisiana limited liability company (“Ground Sublessor”) may be amended or modified without lender's consent, however, if such amendment or modification would have a material adverse effect on the peaceful possession of the Mortgaged Property by First Class Hotels, LLC, a Louisiana limited liability company (the “Ground Sublessee” or “Mortgagor”), the Ground Sublessee under that certain Ground Sublease (the “Ground Sublease”), by and between Ground Sublessor and Ground Sublessee, then such amendment or modification will not be effective until thirty (30) days after a copy of such amendment or modification is delivered to the lender. The Master Ground Lease does not provide that such lease may not be terminated without the consent of the lender however, Master Ground Lessor must enter into a direct lease with the lender if the Master Ground Lease is terminated, subject to certain conditions.   Neither the Ground Sublease nor that certain Ballroom Lease (“Ballroom Lease”) by and between Ground Sublessor (“Ballroom Lessor”) and Mortgagor (“Ballroom Lessee”) may be amended or modified without lender’s consent if such amendment or modification would have a material adverse effect on, with respect to the Ground Sublease, the Ground Sublessee, the Ballroom Lessee or the Mortgaged Property and, with respect to the Ballroom Lease, the Ballroom Lessee or the Mortgaged Property. Neither the Ground Sublease nor the Ballroom Lease provides that such lease may not be terminated without the consent of the lender however, the Ground Sublessor or the Ballroom Lessor, as applicable, must enter into a

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
				direct lease with the Mortgagor or lender if the Ground Sublease or the Ballroom Lease, as applicable, is terminated, subject to certain conditions.   (b) The Master Ground Lease and the Ground Sublease have original terms that extend not less than twenty (20) years beyond the stated maturity of the related Mortgage Loan.  If the Master Ground Lease and the Ground Sublease are terminated and the Master Ground Lessor enters into a direct lease with the Mortgagor for the Mortgaged Property, then the replacement lease will only extend ten (10) years beyond the stated maturity of the related Mortgage Loan.   (c) The existing mortgage in favor of Ground Subessor’s and Ballroom Lessor’s mortgagee is superior to any leasehold mortgage encumbering the Ballroom Lessee's leased premises, however, the Ground Subessor’s and Ballroom Lessor’s mortgagee agreed in a Ground Sublease Consent and Estoppel Agreement that in the event of foreclosure by Ground Sublessor’s and Ballroom Lessor’s mortgagee, it will perform the same obligations to lender under such Ground Sublease Consent and Estoppel Agreement (including with respect to amendments, cures of defaults and granting of a direct lease) as Ground Sublessor and Ballroom Lessor have agreed to perform under such Ground Sublease Consent and Estoppel Agreement.   (f) While the Master Ground Lessor, the Ground Sublessor or the Ballroom Lessor, as applicable, must give written notice to the lender of any default, none of the Master Ground Lease, the Ground Sublease or the Ballroom Lease provides that no notice of default or termination is effective unless such notice is given to the lender. The Master Ground Lessor may not take any action that would prejudice the lender unless such notice and cure period are provided to such lender.   (g) Lender is permitted to cure defaults under the Master Ground Lease, the Ground Sublease and the Ballroom Lease, as applicable, during the same time frame in which the Master Ground Sublessor, the Ground Sublessee or the Ballroom Lessee, as applicable, is permitted to cure such defaults, however, the lender is not provided with any additional time under the applicable lease to foreclose on the Mortgaged Property before such applicable lease may be terminated.   (i) and (j) The insurance proceeds with respect to the Master Ground Lease and the Ground Sublease (after applying them to pay any amount past due to the applicable lessor) must be held by a trustee reasonably approved by the Master Ground Lessor, Ground Sublessor and Ground Sublessee. Such proceeds must be used to repair or to restore the Mortgaged Property and cannot be applied to the payment of the outstanding principal balance of the Mortgage Loan. If there is a partial taking of the building, the leases obligate each lessee to use the award to pay for the restoration of the related mortgaged property (to bring such mortgaged property to a serviceable condition).
4	Coastal Equities Retail Portfolio	(43) Cross-Collateralization		The related Mortgaged Property also secures six additional promissory notes: promissory note A-1 in the original principal amount of $25,000,000, promissory note A-2 in the original principal amount of $25,000,000, promissory note A-3 in the original principal amount of $25,000,000, promissory note A-6 in the original principal amount of $20,000,000,  promissory note A-7 in the original principal amount of $10,000,000, promissory note A-10 in the original principal amount of $4,000,000, which have a combined original principal balance of $109,000,000.
1	Herald Center	(43) Cross-		The related Mortgaged Property also secures two additional

EXHIBIT 1 ID#	Mortgage Loan	Representation		Exception
		Collateralization		promissory notes: promissory note A-1 in the original principal amount of $100,000,000 and promissory note A-3 in the original principal amount of $40,000,000, which have a combined original principal balance of $140,000,000.
3	Roosevelt New Orleans Waldorf Astoria	(43) Cross-Collateralization		The related Mortgaged Property also secures one additional promissory note: promissory note A-1 in the original principal amount of $82,500,000.

 

Schedule 2-B

 

List of Cross-Collateralized or Cross-Defaulted Mortgage Loans

 

None.

 

 

EXHIBIT 3

 

FORM OF ▇▇▇▇ OF SALE

 

 

	Seller:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
	Purchaser:	Banc of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Mortgage Inc.

 

 

 

 

 

 

 

IN WITNESS WHEREOF, each of the parties hereto has caused this ▇▇▇▇ of Sale to be duly executed and delivered on the Closing Date (as defined in the Mortgage Loan Purchase Agreement).

 

 

 

 

SELLER:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC
	By:
		Name:
		Title:

 

PURCHASER:	BANC OF AMERICA ▇▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL MORTGAGE INC.
	By:
		Name:
		Title:

                                                                              

                                                                           

 

 

EXHIBIT 4

 

FORM OF LIMITED POWER OF ATTORNEY

 

TO U.S. BANK NATIONAL ASSOCIATION AND MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION WITH RESPECT TO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK OF AMERICA ▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST 2015-C25, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2015-C25

 

KNOW ALL MEN BY THESE PRESENTS:

 

WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement dated October 7, 2015 (the “Mortgage Loan Purchase Agreement”), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC (“Seller”) and Banc of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Mortgage Inc. (“Depositor”), Seller is selling certain multifamily and commercial mortgage loans (the “Mortgage Loans”) to Depositor;

 

WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement dated as of October 1, 2015 (the “Pooling and Servicing Agreement”), between the Depositor, as depositor, ▇▇▇▇▇ Fargo Bank, National Association, as master servicer (the “Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as special servicer (the “Special Servicer”), U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), certificate administrator (in such capacity, the “Certificate Administrator”), custodian (in such capacity, the “Custodian”), certificate registrar and authenticating agent, and Pentalpha Surveillance LLC, as trust advisor (the “Trust Advisor”), both the Trustee and the Special Servicer are granted certain powers, responsibilities and authority in connection with the completion and the filing and recording of assignments of mortgage, deeds of trust or similar documents, Form UCC-3 assignments of financing statements, reassignments of assignments of leases, rents and profits and other Mortgage Loan documents required to be filed or recorded in appropriate public filing and recording offices;

 

WHEREAS, Seller has agreed to provide this Limited Power of Attorney pursuant to the Mortgage Loan Purchase Agreement;

 

NOW, THEREFORE, Seller does hereby make, constitute and appoint the Custodian (on behalf of the Trustee), acting solely in its capacity as Custodian under, and in accordance with the terms of, the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to each Mortgage Loan in Seller’s name, place and stead:  (i) to complete (to the extent necessary) and to cause to be submitted for filing or recording in the appropriate public filing or recording offices, all assignments of mortgage, deeds of trust or similar documents, assignments or reassignments of rents, leases and profits, in each case in favor of the Trustee, as set forth in the definition of “Mortgage File” in Section 1.1 of the Pooling and Servicing Agreement, that have been received by the Trustee or a Custodian on its behalf, and all Form UCC-3 assignments of financing statements and all other comparable instruments or documents with respect to the Mortgage Loans which are customarily and reasonably necessary or appropriate to assign agreements, documents and instruments pertaining to the Mortgage Loans, in each case in favor of the Trustee as set forth in the definition of “Mortgage File” in, and in accordance with Section 1.1 of, the Pooling and Servicing Agreement, and to evidence, provide notice of and perfect such assignments and conveyances in favor of the Trustee in the public records of the appropriate filing and recording offices; and (ii) to file or record in the appropriate public filing or recording offices, all other Mortgage Loan documents to be recorded

 

 

under the terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents which have not been submitted for filing or recordation by Seller on or before the date hereof or which have been so submitted but are subsequently lost or returned unrecorded or unfiled as a result of actual or purported defects therein, in order to evidence, provide notice of and perfect such documents in the public records of the appropriate filing and recording offices.  Notwithstanding the foregoing, this Limited Power of Attorney shall grant to the Custodian (on behalf of the Trustee) and the Special Servicer only such powers, responsibilities and authority as are set forth in Section 2.1 of the Mortgage Loan Purchase Agreement.

 

Seller does also hereby make, constitute and appoint the Special Servicer, acting solely in its capacity as Special Servicer under the Pooling and Servicing Agreement, Seller’s true and lawful agent and attorney-in-fact with respect to the Mortgage Loans in Seller’s name, place and stead solely to exercise and perform all of the rights, authority and powers of the Custodian (on behalf of the Trustee) as set forth in the preceding paragraph in the event of the failure or the incapacity of the Custodian to do so for any reason.  As between the Special Servicer and any third party, no evidence of the failure or incapacity of the Custodian shall be required and such third party may rely upon the Special Servicer’s written statement that it is acting pursuant to the terms of this Limited Power of Attorney.

 

The enumeration of particular powers herein is not intended in any way to limit the grant to either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact of full power and authority with respect to the Mortgage Loans to complete (to the extent necessary), file and record any documents, instruments or other writings referred to above as fully, to all intents and purposes, as Seller might or could do if personally present, hereby ratifying and confirming whatsoever such attorney-in-fact shall and may do by virtue hereof; and Seller agrees and represents to those dealing with such attorney-in-fact that they may rely upon this Limited Power of Attorney until termination thereof under the provisions of the second following paragraph below.  As between Seller, the Depositor, the Master Servicer, the Special Servicer, the Custodian, the Trust Fund and the Certificateholders, neither the Custodian nor the Special Servicer may exercise any right, authority or power granted by this Limited Power of Attorney in a manner which would violate the terms of the Pooling and Servicing Agreement, but any and all third parties dealing with either the Custodian (on behalf of the Trustee) or the Special Servicer as Seller’s attorney-in-fact may rely completely, unconditionally and conclusively on the authority of the Custodian or the Special Servicer, as applicable, and need not make any inquiry about whether the Custodian or the Special Servicer is acting pursuant to the Pooling and Servicing Agreement.  Any purchaser, title insurance company or other third party may rely upon a written statement by either the Custodian or the Special Servicer that any particular Mortgage Loan or related mortgaged real property in question is subject to and included under this Limited Power of Attorney and the Pooling and Servicing Agreement.

 

Any act or thing lawfully done hereunder by either the Custodian (on behalf of the Trustee) or the Special Servicer shall be binding on Seller and Seller’s successors and assigns.

 

This Limited Power of Attorney shall continue in full force and effect with respect to the Custodian (on behalf of the Trustee) and the Special Servicer, as applicable, until the earliest occurrence of any of the following events:

 

(1)

with respect to the Custodian (on behalf of the Trustee), the termination of the Custodian and its replacement with a successor Custodian under the terms of the Pooling and Servicing Agreement;

 

 

(2)

with respect to the Special Servicer, the termination of the Special Servicer and its replacement with a successor Special Servicer under the terms of the Pooling and Servicing Agreement;

 

(3)

with respect to the Custodian (on behalf of the Trustee), the appointment of a receiver or conservator with respect to the business of the Custodian, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Custodian;

 

(4)

with respect to the Special Servicer, the appointment of a receiver or conservator with respect to the business of the Special Servicer, or the filing of a voluntary or involuntary petition in bankruptcy by or against the Special Servicer;

 

(5)

with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer and any Mortgage Loan, such Mortgage Loan is no longer a part of the Trust Fund;

 

(6)

with respect to each of the Custodian (on behalf of the Trustee) and the Special Servicer, the termination of the Pooling and Servicing Agreement in accordance with its terms; and

 

(7)

with respect to the Special Servicer, the occurrence and continuance of, or failure to cure, any of the events described under Section 9.30(b) of the Pooling and Servicing Agreement with respect to the Special Servicer.

 

Nothing herein shall be deemed to amend or modify the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective rights, duties or obligations of Seller under the Mortgage Loan Purchase Agreement, and nothing herein shall constitute a waiver of any rights or remedies under the Pooling and Servicing Agreement.

 

Capitalized terms used but not defined herein have the respective meanings assigned thereto in the Mortgage Loan Purchase Agreement or, if not defined therein, then in the Pooling and Servicing Agreement.

 

THIS POWER OF ATTORNEY AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.  THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

 

[Signature on next page]

 

 

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of _______________, 2015.

 

	▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC
	By:
		Name:
		Title:

 

 

 

▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇

 

▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇	)
	)ss:
COUNTY OF NEW YORK	)

 

On this ____ day of _____________ 2015, before me appeared __________________, to me personally known, who, being by me duly sworn did say that he/she is the ___________________ of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said ___________________ acknowledged said instrument to be the free act and deed of said corporation.

 

		Name:
			Notary Public in and for said County and State
My Commission Expires:

 

 

 

 

List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5

 

None.

 

 

 

 

 

 

 

 

Sch. A-1