MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of May 21, 2008 (this
"Agreement"), is entered into between Bank of America, National Association (the
"Seller") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans") acquired from other entities (the "Other Sellers"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes of mortgage pass-through certificates (the "Certificates"). One
or more "real estate mortgage investment conduit" ("REMIC") elections will be
made with respect to most of the Trust Fund. The Trust Fund will be created and
the Certificates will be issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2008 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, Bank of America, National Association, Midland Loan
Services, Inc. ("Midland") and Wachovia Bank, National Association as master
servicers (each, in such capacity, a "Master Servicer"), Midland as special
servicer (the "Special Servicer"), U.S. Bank National Association as trustee
(the "Trustee") and LaSalle Bank National Association as certificate
administrator and custodian (in such capacities, the "Certificate Administrator"
and "Custodian", respectively). Capitalized terms used but not defined herein
(including the schedules attached hereto) have the respective meanings set forth
in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
May 21, 2008 (the "Underwriting Agreement"), with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), for itself and as representative of Banc
of America Securities LLC ("Banc of America Securities"), Citigroup Global
Markets Inc. ("Citigroup") and PNC Capital Markets LLC ("PNC Capital"; ▇▇▇▇▇▇▇
▇▇▇▇▇, Banc of America Securities, Citigroup and PNC Capital, collectively, in
such capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of May 21, 2008 (the "Certificate Purchase Agreement"), with
▇▇▇▇▇▇▇ ▇▇▇▇▇ for itself and as representative of Banc of America Securities
(together in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (such
Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $242,927,712 (the "Bank of America Mortgage
Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The Bank of America
Mortgage Loan Balance, together with the aggregate principal balance of the
Other Mortgage Loans as of the Cut-off Date (after giving effect to any payments
due on or before such date, whether or not such payments are received), is
expected to equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of $948,772,134 (subject to a variance of plus or minus 5%). The
purchase and sale of the Mortgage Loans shall take place on June 12, 2008 or
such other date as shall be mutually acceptable to the parties to this Agreement
(the "Closing Date"). The consideration (the "Purchase Consideration") for the
Mortgage Loans shall be equal to (i) 95.361513382% of the Bank of America
Mortgage Loan Balance as of the Cut-off Date, plus (ii) $460,118.12, which
amount represents the amount of interest accrued on the Bank of America Mortgage
Loan Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis (subject to certain agreements regarding servicing
as provided in the Pooling and Servicing Agreement, the sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement (as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Custodian (i) on or before
the Closing Date, the documents and instruments specified below with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan Documents and
(ii) on or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the documents and
instruments specified below and referred to in clauses (i) and (ii) preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered will be held
by the Custodian in escrow for the benefit of the Seller at all times prior to
the Closing Date. The
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Mortgage File with respect to each Mortgage Loan that is a Serviced Trust
Mortgage Loan shall contain the following documents:
(i) (A) the original executed Mortgage Note for the subject
Mortgage Loan, including any power of attorney related to the execution
thereof (or a lost note affidavit and indemnity with a copy of such
Mortgage Note attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of U.S. Bank National Association, as trustee for the registered
holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2008-C1, Commercial Mortgage
Pass-Through Certificates, Series 2008-C1, or in blank, and (B) in the case
of a Loan Combination, a copy of the executed Mortgage Note for each
related Non-Trust Loan;
(ii) an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office or, in the case of a MERS Mortgage Loan (as defined below), an
original or a copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the
applicable recording office) with evidence of recording indicated thereon
or certified by the applicable recording office, with language noting the
presence of the MIN (as defined below) of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in each
case (unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office or, in the case of a MERS Mortgage Loan, an original or
copy of any related Assignment of Leases (if such item is a document
separate from the Mortgage), together with any and all intervening
assignments thereof, in each case with evidence of recording indicated
thereon or certified by the applicable recording office, with language
noting the presence of the MIN of such Mortgage Loan and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name and address (if the assignment is
delivered in blank) and any missing recording information or a certified
copy of that assignment as sent for recording), of (a) the Mortgage, (b)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of U.S.
Bank National Association, as trustee for the registered holders of ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through
Certificates, Series 2008-C1 (or, in the case of a Loan Combination, in
favor of U.S. Bank National Association, as trustee for the registered
holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2008-C1, Commercial Mortgage
Pass-Through Certificates, Series 2008-C1, and in its capacity as lead
lender on behalf of the holder(s) of the related Non-Trust Loan(s)), or in
blank or, in the case of a MERS Mortgage Loan, evidence from MERS
indicating the Trustee's ownership of such Mortgage Loan on the MERS(R)
System and the Trustee as the beneficiary of the assignment(s) of (x) the
Mortgage, (y) any related Assignment of Leases (if such item is a
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document separate from the Mortgage) and (z) any other recorded document
relating to such Mortgage Loan otherwise included in the Mortgage File;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above) in favor of U.S. Bank National Association, as trustee for the
registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2008-C1, Commercial
Mortgage Pass-Through Certificates, Series 2008-C1 (or, in the case of a
Loan Combination, in favor of U.S. Bank National Association, as trustee
for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2008-C1,
Commercial Mortgage Pass-Through Certificates, Series 2008-C1, and in its
capacity as lead lender on behalf of the holder(s) of the related Non-Trust
Loan(s)), or in blank or, in the case of a MERS Mortgage Loan (to the
extent not already evidenced pursuant to clause (iv) above), evidence from
MERS indicating the Trustee's ownership of the Mortgage Loan on the MERS(R)
System and the Trustee as beneficiary of the assignment(s) of unrecorded
documents related to the Mortgage Loan;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or a marked version of the policy that has been executed
by an authorized representative of the title company or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of U.S. Bank National Association, as trustee
for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Trust 2008-C1,
Commercial Mortgage Pass-Through Certificates, Series 2008-C1, as assignee
(or, in the case of a Loan Combination, in favor of U.S. Bank National
Association, as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through Certificates,
Series 2008-C1, and in its capacity as lead lender on behalf of the holder
of the related Non-Trust Loan(s)), or in blank or, in the case of a MERS
Mortgage Loan, evidence from MERS indicating the Trustee's ownership of
such Mortgage Loan on the MERS(R) System and the Trustee as the beneficiary
of any effective UCC Financing Statement in favor of the Seller on record
with the applicable public office for UCC Financing Statements;
(ix) an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) an original or a copy of any intercreditor agreement relating
to permitted debt of the Mortgagor and any intercreditor agreement relating
to mezzanine debt related to the Mortgagor;
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(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any agreed upon procedures
letter, any lockbox or cash management agreements, any environmental
reports or any letter of credit (which letter of credit shall not be
delivered in original form to the Custodian, but rather to the applicable
Master Servicer), in each case relating to the subject Mortgage Loan;
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a Loan Combination,
an original or a copy of the related Loan Combination Co-Lender Agreement.
The Mortgage File with respect to each of the Arundel ▇▇▇▇▇ Trust
Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage Loan shall contain
the following documents:
(i) the original executed Mortgage Note for such Mortgage Loan,
including any power of attorney related to the execution thereof (or a lost
note affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of U.S. Bank
National Association, as trustee for the registered holders of MLMT
Commercial Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through
Certificates, Series 2008-C1, or in blank;
(ii) an executed copy of the related Loan Combination Co-Lender
Agreement; and
(iii) an executed copy of the related Outside Servicing
Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
The Seller hereby further represents and warrants that with respect to
each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio
Trust Mortgage Loan, it has delivered to the related Outside Trustee the
documents constituting the "Mortgage File" within the meaning of the related
Outside Servicing Agreement in connection with its sale of each of the Arundel
▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage Loan.
For purposes of this Section 2(c):
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS Mortgage Loan" means any Mortgage Loan registered with MERS on
the MERS(R) System, as to which MERS is acting as mortgagee, solely as nominee
for the Seller and its successors and assigns, which Mortgage Loans are
identified on Schedule III hereto.
"MERS(R) System" means the system of recording transfers of mortgages
electronically maintained by MERS.
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"MIN" means the mortgage identification number on the MERS(R) System
for any MERS Mortgage Loan.
(d) The Seller shall take all actions reasonably necessary to permit
the Custodian to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement with respect to the Mortgage Loans, including
paying the fees (as agreed to between the Seller and the Custodian) charged by
the Custodian in connection with the performance by the Custodian of the
recording, filing and delivery obligations it has undertaken pursuant to Section
2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the applicable Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the applicable Master Servicer (or, at the direction of such Master Servicer, to
the appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting, legal or other due diligence analyses, credit committee briefs or
memoranda or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Custodian, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Custodian or any
other person because the delivery of the mortgage loan checklist is being
provided to the Custodian solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and the Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
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receivership, conservatorship or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's articles of association or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Seller is a party or by which the Seller is
bound, which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law
or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution of this Agreement or the performance
by the Seller of its obligations under this Agreement (except to the extent
such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller in
any court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash
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amount equal to the Purchase Consideration. The consideration received by
the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller.
(x) The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise from its
role as "sponsor" (within the meaning of Regulation AB)), the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties pursuant
to Regulation AB. For purpose of this Agreement, "Regulation AB" shall mean
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Sections 229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller receives written notice of a Document Defect or a
Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, then the Seller shall, not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach, provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach materially and adversely affects the value of the
related Mortgage Loan or the interests of the Certificateholders therein, cure
such Document Defect or Breach, as the case may be, in all material respects,
which shall include payment of losses and any Additional Trust Fund Expenses
associated therewith or, if such Document Defect or Breach (other than omissions
due solely to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan (which, for the purposes of this clause (i), shall include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement) not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for
purposes of this clause (ii), shall include an REO Loan) not later than the end
of such 90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit into its
Collection Account any Substitution Shortfall Amount in connection therewith;
provided, however, that, unless the Document Defect or Breach would cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document Defect or Breach
is capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Certificate Administrator setting
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forth the reason(s) such Document Defect or Breach is not capable of being cured
within the initial 90-day period and what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that no Document Defect (other than with respect
to the Specially Designated Mortgage Loan Documents) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans, determined at the time of repurchase or
substitution, based upon an appraisal obtained by the Special Servicer at the
expense of the Seller shall not be greater than the weighted average
loan-to-value ratio for all such Crossed Loans, including the affected Crossed
Loan determined at the time of repurchase or substitution, based upon an
appraisal obtained by the Special Servicer at the expense of the Seller;
provided, that if such debt service coverage and loan-to-value criteria are
satisfied, any other Crossed Loan (that is not the Crossed Loan directly
affected by the subject Document Defect or Breach), shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Document Defect
or Breach) is held in the Trust Fund; and provided, further, that the repurchase
or replacement of less than all such Crossed Loans and the release of any
Crossed Loan from a cross-collateralization and cross-default provision shall be
further subject to (i) the delivery by the Seller to the Certificate
Administrator, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release would not cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions and (ii) the consent of the Controlling Class Representative
(if one is then acting), which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Document Defect or
Breach exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Loan Group. All documentation relating to the termination of the
cross-collateralization provisions of a Crossed Loan being repurchased shall be
prepared at the expense of the Seller and, where required, with the consent of
the related Mortgagor. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach known to the Seller that existed as of
the Closing Date, the Seller shall provide, once every 90 days, the officer's
certificate to
9
the Certificate Administrator described above as to the reason(s) such Document
Defect or Breach remains uncured and as to the actions being taken to pursue
cure; provided, however, that, without limiting the effect of the foregoing
provisions of this Section 3(c), if such Document Defect or Breach shall
materially and adversely affect the value of such Mortgage Loan or the interests
of the holders of the Certificates therein (subject to the second and third
provisos in the sole sentence of the preceding paragraph), the Seller shall in
all cases on or prior to the second anniversary of the Closing Date either cause
such Document Defect or Breach to be cured or repurchase or substitute for the
affected Mortgage Loan (for the avoidance of doubt, the foregoing two-year
period shall not be deemed to be a time limitation on the Seller's right to cure
a Document Defect or Breach as set forth in this Section 3). The delivery of a
commitment to issue a policy of lender's title insurance as described in
representation 8 set forth on Schedule I hereto in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Custodian not later than the 180th day following
the Closing Date.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies or some other mutually agreed
upon accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents, or, if the related
Mortgage Loan documents do not so provide, then on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan is modified to terminate the related cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Certificate
Administrator an Opinion of Counsel that such modification shall not cause an
Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section 3(c),
if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate
10
Administrator, the Custodian or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the Mortgage Loan documents and the Seller provides an opinion of
counsel to the effect that such release would not cause either of REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on "prohibited transactions" or "contributions" after the
Startup Day under the REMIC Provisions and (iii) each Rating Agency then rating
the Certificates shall have provided written confirmation that such release
would not cause the then-current ratings of the Certificates rated by it to be
qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the applicable Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or substitution
of the related Mortgage Loan. Following the Seller's remittance of funds in
payment of such costs and expenses, the Seller shall be deemed to have cured the
breach of representation 30 in all respects. To the extent any fees or expenses
that are the subject of a cure by the Seller are subsequently obtained from the
related Mortgagor, the cure payment made by the Seller shall be returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the Seller,
acting in its sole discretion, may effect a repurchase or substitution (in
accordance with the provisions of this Section 3(c) setting forth the manner in
which a Mortgage Loan may be repurchased or substituted) of a Mortgage Loan, as
to which representation 30 set forth on Schedule I has been breached, in lieu of
paying the costs and expenses that were the subject of the breach of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the applicable Master Servicer's Collection
Account, and, if applicable, the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the applicable Master Servicer, respectively, (i) the Trustee
shall be required to execute and deliver such endorsements and assignments as
are provided to it by the applicable Master Servicer or the Seller, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Seller the legal and beneficial ownership of each repurchased Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian,
the applicable Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Custodian and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage
11
Loan for a deleted Mortgage Loan shall be permitted under this Agreement if,
after such substitution, the aggregate of the Stated Principal Balances of all
Qualified Substitute Mortgage Loans which have been substituted for deleted
Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of all the
Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with respect
to any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf the
Certificate Administrator may act) on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3.
(f) If, upon any payment in full with respect to any MERS Mortgage
Loan, none of the Trustee, the Master Servicer or any Sub-Servicer of such
Mortgage Loan is registered with MERS and is unable to reflect the release of
the related Mortgage on the MERS(R) System, the Seller shall take all necessary
action to reflect the release of such Mortgage on the MERS(R) System and shall
take such other actions as are necessary to enable the Master Servicer and the
Trustee to comply with the provisions of Section 3.10 of the Pooling and
Servicing Agreement and any other provisions relating to the release of the
Mortgage Loan or the related Mortgage File.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, conservatorship or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
12
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian and
the applicable Master Servicer, respectively, all documents represented to have
been or required to be delivered to the Custodian and such Master Servicer
pursuant to Section 2 of this Agreement;
13
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of Ernst
& Young LLP, in form satisfactory to the Purchaser and relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus and Prospectus Supplement, respectively, shall have been delivered;
and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of May 21, 2008, among the
Seller, the Other Sellers, the Purchaser, the Underwriters and the Initial
Purchasers.
Both parties agree to use their best reasonable efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the agreement(s) pursuant to which the servicing rights with respect
to the Mortgage Loans are being sold to the applicable Master Servicer (such
agreement(s), individually or collectively, as the case may be, the "Servicing
Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as
14
defined below) of the Free Writing Prospectus and nothing has come to his/her
attention that leads him/her to believe that the Specified Portions of the Free
Writing Prospectus (when read together with the free writing prospectus which
was distributed to prospective investors in the Certificates by e-mail on May
21, 2008), as of the Time of Sale or as of the Closing Date, included or include
any untrue statement of a material fact relating to the Mortgage Loans or
omitted or omit to state therein a material fact necessary in order to make the
statements therein relating to the Mortgage Loans, in light of the circumstances
under which they were made, not misleading, (ii) such officer has carefully
examined the Specified Portions (as defined below) of the Prospectus Supplement
and nothing has come to his/her attention that leads him/her to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (iii) such officer has carefully
examined the Specified Portions (as defined below) of the Memorandum (pursuant
to which certain classes of the Private Certificates are being privately
offered) and nothing has come to his/her attention that leads him/her to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus shall consist
of Annex A-1 to the Free Writing Prospectus, entitled "Certain Characteristics
of the Mortgage Loans" (insofar as the information contained in Annex A-1
relates to the Mortgage Loans sold by the Seller hereunder), Annex A-1(YM) to
the Free Writing Prospectus entitled "Yield Maintenance Formulas" (insofar as
the information contained in Annex A-1(YM) relates to the Mortgage Loans sold by
the Seller hereunder), Annex A-2 to the Free Writing Prospectus, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Free Writing Prospectus entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Free Writing Prospectus, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the CD-ROM which
accompanies the Free Writing Prospectus (insofar as such CD-ROM is consistent
with Annex ▇-▇, ▇▇▇▇▇ ▇-▇(▇▇), ▇▇▇▇▇ ▇-▇ and/or Annex B (only insofar as the
information contained therein relates to the Mortgage Loans sold by the Seller
hereunder)), and the following sections of the Free Writing Prospectus (only to
the extent that any such information relates to the Seller (solely in its
capacity as a seller, sponsor or originator of the Mortgage Loans sold by the
Seller hereunder), or the Mortgage Loans sold by the Seller hereunder and
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement
and exclusive of aggregated numerical information that includes the Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool", "Servicing of the
Arundel ▇▇▇▇▇ Loan Combination", "Servicing of the Apple Hotel Portfolio Loan
Combination", "Transaction Participants--The Sponsors" and "Affiliations and
Certain Relationships and Related Transactions".
The "Specified Portions" of the Prospectus Supplement shall consist of
Annex A-1 to the Prospectus Supplement, entitled "Certain Characteristics of the
Mortgage Loans" (insofar as the
15
information contained in Annex A-1 relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-1(YM) to the Prospectus Supplement entitled "Yield
Maintenance Formulas" (insofar as the information contained in Annex A-1(YM)
relates to the Mortgage Loans sold by the Seller hereunder), Annex A-2 to the
Prospectus Supplement, entitled "Certain Statistical Information Regarding the
Mortgage Loans" (insofar as the information contained in Annex A-2 relates to
the Mortgage Loans sold by the Seller hereunder), Annex B to the Prospectus
Supplement entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Prospectus Supplement, entitled
"Description of the Ten Largest Mortgage Loans" (insofar as the information
contained in Annex C relates to the Mortgage Loans sold by the Seller
hereunder), the CD-ROM which accompanies the Prospectus Supplement (insofar as
such CD-ROM is consistent with Annex ▇-▇, ▇▇▇▇▇ ▇-▇(▇▇), ▇▇▇▇▇ ▇-▇ and/or Annex
B (only insofar as the information contained therein related to the Mortgage
Loans sold by the Seller hereunder)), and the following sections of the
Prospectus Supplement (only to the extent that any such information relates to
the Seller (solely in its capacity as a seller, sponsor or originator of the
Mortgage Loans sold by the Seller hereunder), or the Mortgage Loans sold by the
Seller hereunder and exclusive of any statements in such sections that purport
to describe the servicing and administration provisions of the Pooling and
Servicing Agreement and exclusive of aggregated numerical information that
includes the Other Mortgage Loans): "Summary of Prospectus Supplement--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Prospectus Supplement--The
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool", "Servicing of the
Arundel ▇▇▇▇▇ Loan Combination", "Servicing of the Apple Hotel Portfolio Loan
Combination", "Transaction Participants--The Sponsors" and "Affiliations and
Certain Relationships and Related Transactions".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus dated May 16,
2008, and relating to the Publicly Offered Certificates.
"Memorandum" means the confidential Private Placement Memorandum dated
May 21, 2008, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 10, 2007.
"Prospectus Supplement" means the prospectus supplement dated May 21,
2008, that supplements the Prospectus and relates to the Publicly-Offered
Certificates; and
"Time of Sale" means May 21, 2008, at 12:45 p.m.
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the articles of association and bylaws of
the Seller, and (iii) a certificate of valid existence of the Seller issued by
the Office of the Comptroller of the Currency not earlier than 30 days prior to
the Closing Date;
16
(f) A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Certificate Administrator, the
Custodian, the Underwriters, the Initial Purchasers and each of the Rating
Agencies, together with such other written opinions, including as to insolvency
matters, as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or an affiliate thereof)
are parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the applicable Master Servicer's Collection
Account, the Distribution Account or, if established, the REO Account whether in
the form of cash, instruments, securities or other property; (iii) the
assignment to the Trustee of the interest of the Purchaser as contemplated by
Section 1 of this Agreement shall be deemed to be an assignment of any security
interest created hereunder; (iv) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes, and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be possession by the secured party
for purposes of perfecting the security interest pursuant to Section 9-313 of
the UCC of the applicable jurisdiction; and (v) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement. The Seller does
17
hereby consent to the filing by the Purchaser of financing statements relating
to the transactions contemplated hereby without the signature of the Seller.
SECTION 9. Exchange Act Reporting.
(a) The Seller hereby agrees to deliver to the Purchaser any
disclosure information relating to any event, specifically relating to the
Seller (that arise from its role as sponsor with respect to the Mortgage Loans),
reasonably determined in good faith by the Purchaser as required to be reported
on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting reasonably
appropriate for inclusion in such form) insofar as such disclosure is required
under Item 1117 or 1119 of Regulation AB or Item 1.03 to Form 8-K. The Seller
shall use reasonable efforts to deliver proposed disclosure language relating to
any event, specifically relating to the Seller (that arise from its role as
sponsor with respect to the Mortgage Loans), described under Item 1117 or 1119
of Regulation AB or Item 1.03 to Form 8-K to the Purchaser as soon as reasonably
practicable after the Seller becomes aware of such event and in no event more
than two (2) business days following the occurrence of such event if such event
is reportable under Item 1.03 to Form 8-K. The obligation of the Seller to
provide the above referenced disclosure materials in any fiscal year of the
Trust Fund will terminate upon the Certificate Administrator's filing of a Form
15 with respect to the Trust Fund as to that fiscal year in accordance with
Section 8.16 of the Pooling and Servicing Agreement or the reporting
requirements with respect to the Trust Fund under the Securities Exchange Act of
1934, as amended (the "1934 Act"), have otherwise automatically suspended. The
Seller hereby acknowledges that the information to be provided by it pursuant to
this Section 9 will be used in the preparation of reports on Form 8-K, Form 10-D
or Form 10-K with respect to the Trust Fund as required under Section 13 and/or
Section 15(d) of the 1934 Act and any applicable rules promulgated thereunder
and as required under Regulation AB.
(b) The Seller hereby represents and warrants that, with respect to
each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio
Trust Mortgage Loan, the related Outside Servicing Agreement provides that, for
so long as the Trust is subject to the reporting requirements of the 1934 Act,
the related servicers and servicing function participants (within the meaning of
Item 1122 of Regulation AB) are each required to deliver to the Depositor and/or
the Certificate Administrator, in any calendar year in which the Trust is
required to file a Form 8-K, Form 10-D or Form 10-K and in a timely manner given
the time frame for the applicable filing: (i) the reports, attestations and/or
statements required under Items 1122 and 1123 of Regulation AB, (ii) back-up
certifications supporting the certification required to be made by the Depositor
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and (iii) any disclosure information
relating to events, conditions or circumstances specifically relating to such
servicer, servicing function participant or Outside Serviced Mortgage Loan that
are required to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust,
insofar as such disclosure is required under Items 1112(b), 1117 and 1119 of
Regulation AB and Form 8-K.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent either
by certified mail (return receipt requested) or by courier service (proof of
delivery requested) to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto, or as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by
18
reference or contained in the certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser (and by
the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT AND
THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party that commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the
19
extent of such assignment, succeed to the rights and obligations hereunder of
the Purchaser. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of and be enforceable by the Seller, the Purchaser, the Underwriters
(as intended third party beneficiaries hereof), the Initial Purchasers (also as
intended third party beneficiaries hereof) and their permitted successors and
assigns. This Agreement is enforceable by the Underwriters, the Initial
Purchasers and the other third party beneficiaries hereto in all respects to the
same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 21. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
PURCHASER
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BANK OF AMERICA MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
Bank of America, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Bank of America, National Association
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Esq., Assistant General Counsel
and with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Purchaser:
Address for Notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Director of CMBS Securitizations
and to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
BANK OF AMERICA MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto and the rights of a holder of a related Non-Trust
Loan pursuant to a Loan Combination Co-Lender Agreement). The Seller has validly
and effectively conveyed to the Purchaser all legal and beneficial interest in
and to each Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance (except for certain servicing rights as provided
in the Pooling and Servicing Agreement, any permitted subservicing agreements
and servicing rights purchase agreements pertaining thereto); provided that
recording and/or filing of various transfer documents are to be completed after
the Closing Date as contemplated hereby and by the Pooling and Servicing
Agreement; and provided, further that, if the related Mortgage and/or Assignment
of Leases has been recorded in the name of MERS or its designee, no assignment
of Mortgage and/or assignment of Assignment of Leases in favor of the Trustee is
required to be prepared or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS. The sale of
the Mortgage Loans to the Purchaser or its designee does not require the Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and/or interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in June 2008, without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent since the date of
origination of any Mortgage Loan, without giving effect to any applicable grace
period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy, a
"marked-up" commitment binding upon the title insurer or escrow instructions
binding on the title insurer and irrevocably obligating the title insurer to
issue such title insurance policy); (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy, a "marked-up" commitment binding upon
the title insurer or escrow instructions binding on the title insurer and
irrevocably obligating the title insurer to issue such title insurance policy);
(d) other matters to which like properties are commonly subject; (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property; (f) if such Mortgage Loan constitutes a Crossed
Loan, the lien of the Mortgage for another Mortgage Loan contained in the same
Crossed Loan Group; (g) if the related Mortgaged Property consists of one or
more units in a condominium, the related condominium declaration; and (h) the
rights of the holder of any Non-Trust Loan that is part of a related Loan
Combination to which any such Mortgage Loan belongs. The Permitted Encumbrances
do not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee (or, in the case of each of the Arundel
▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage Loan, in
favor of the related Outside Trustee) is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable assignment of such Mortgage from the
relevant assignor to the Trustee (or, in the case of each of the Arundel ▇▇▇▇▇
Trust Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage Loan, in favor
of the related Outside Trustee); provided that, if the related Mortgage and/or
Assignment of Leases has been recorded in the name of MERS or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in favor of the
Trustee is required to be prepared or delivered and instead, the Seller shall
take all actions as are necessary to cause the Trust to be shown as the owner of
the Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except for the holder
of any Non-Trust Loan that is part of a related Loan Combination to which any
such Mortgage Loan belongs, and except that a license may have been granted to
the related Mortgagor to exercise certain rights and perform certain obligations
of the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property so long as no event of default
has occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee (or, in
the case of each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel
Portfolio Trust Mortgage Loan, in favor of the related Outside Trustee) is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of such
Assignment of Leases
from the relevant assignor to the Trustee (or, in the case of each of the
Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage
Loan, in favor of the related Outside Trustee); provided that, if the related
Mortgage and/or Assignment of Leases has been recorded in the name of MERS or
its designee, no assignment of Mortgage and/or assignment of Assignment of
Leases in favor of the Trustee is required to be prepared or delivered and
instead, the Seller shall take all actions as are necessary to cause the Trust
to be shown as the owner of the Mortgage Loan on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. The related Mortgage or related Assignment of
Leases, subject to applicable law, provides for the appointment of a receiver
for the collection of rents or for the related mortgagee to enter into
possession of the related Mortgaged Property to collect the rents or provides
for rents to be paid directly to the related mortgagee, if there is an event of
default beyond applicable notice and grace periods. Except for the holder of the
related Non Trust Loan with respect to any Mortgage Loan that is part of a Loan
Combination, no person other than the related Mortgagor owns any interest in any
payments due under the related leases on which the Mortgagor is the landlord,
covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded in any manner, (b) neither the
related Mortgaged Property nor any material portion thereof has been released
from the lien of such Mortgage and (c) the related Mortgagor has not been
released from its obligations under such Mortgage, in whole or in material part.
With respect to each Mortgage Loan, since the later of (a) May 9, 2008 and (b)
the closing date of such Mortgage Loan, the Seller has not executed any written
instrument that (i) impaired, satisfied, canceled, subordinated or rescinded
such Mortgage Loan, (ii) waived, modified or altered any material term of such
Mortgage Loan, (iii) released the Mortgaged Property or any material portion
thereof from the lien of the related Mortgage, or (iv) released the related
Mortgagor from its obligations under such Mortgage Loan in whole or material
part. For avoidance of doubt, the preceding sentence does not relate to any
release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
Value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge based upon surveys and/or the title
insurance policy referred to in representation 8 below, as of the date hereof,
(a) none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged
Property so as to materially and adversely affect the Value of such Mortgaged
Property, except those encroachments that are insured against by the lender's
title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy, a "marked up" commitment binding on the
title insurer or escrow instructions binding on the title insurer irrevocably
obligating the title insurer to issue the Title Policy) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the Permitted Encumbrances, except that in the case of
a Mortgage Loan as to which the related Mortgaged Property is made up of more
than one parcel of property, each of which is secured by a separate Mortgage,
such Mortgage (and therefore the related Title Policy) may be in an amount less
than the original principal amount of the Mortgage Loan, but is not less than
the allocated amount of subject parcel constituting a portion of the related
Mortgaged Property. Such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid, no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) inures to the benefit of the Trustee (or,
in the case of each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel
Portfolio Trust Mortgage Loan, in favor of the related Outside Trustee) as sole
insured (except with respect to the rights of the holder of any Non-Trust Loan
that is part of a related Loan Combination to which any such Mortgage Loan
belongs) without the consent of or notice to the insurer. Such Title Policy
contains no material exclusion for whether, or it affirmatively insures (unless
the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
(pending the satisfaction of certain conditions relating to leasing, repair or
other matters with respect to the related Mortgaged Property) documented as part
of the Mortgage Loan documents and the rights to which are transferred to the
Trustee (or, in the case of each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and
the Apple Hotel Portfolio Trust Mortgage Loan, in favor of the related Outside
Trustee)) and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, judicial or non-judicial foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located). None of the Mortgage Loan documents contains any provision
that expressly excuses the related Mortgagor from obtaining and maintaining
insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are or will become payable to such trustee by the Seller,
the Purchaser or any transferee thereof except in connection with a trustee's
sale after default by the related Mortgagor or in connection with any full or
partial release of the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) 12 months prior to the date hereof, (c) a copy of each such
Environmental Report has been delivered to the Purchaser, and (d) either: (i) no
such Environmental Report, if any, reveals that as of the date of the report
there is a material violation of applicable environmental laws with respect to
any known circumstances or conditions relating to the related Mortgaged
Property; or (ii) if any such Environmental Report does reveal any such
circumstances or conditions with respect to the related Mortgaged Property and
the same have not been subsequently remediated in all material respects, then
one or more of the following are true--(A) one or more parties not related to
the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor environmental insurance policy and each such
policy is noncancellable during its term, is in the amount at least equal to
125% of the principal balance of the Mortgage Loan, has a term ending no sooner
than the date which is five years after the maturity date of the Mortgage Loan
to which it relates and either does not provide for a deductible or the
deductible amount is held in escrow and all premiums have been paid in full.
Each Mortgagor represents and warrants in the related Mortgage Loan documents
that except as set forth in certain environmental reports and to its knowledge
it has not used, caused or permitted to exist and will not use, cause or permit
to exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials. The related Mortgagor (or affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
out-of-pocket expenses and claims of any kind whatsoever (including attorneys'
fees and costs) paid, incurred or suffered by or asserted against, any such
party resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or one form of action law or
market value limit deficiency legislation), enforceable in accordance with its
terms, except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer and conveyance or other
similar laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (iii) public policy
considerations underlying applicable securities laws, to the extent that such
public policy considerations limit the enforceability of provisions that purport
to provide indemnification from liabilities under applicable securities laws,
and except that certain provisions in such loan documents may be further limited
or rendered unenforceable by applicable law, but (subject to the limitations set
forth in the foregoing clauses (i), (ii) and (iii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least 12 months (or a specified dollar amount which is reasonably estimated
to cover no less than 12 months of rental income), unless such Mortgaged
Property constitutes a manufactured housing community. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as a special flood hazard area
(Zone A or Zone V), and flood insurance was available, a flood insurance policy
is in effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of: (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable federal
flood insurance program. Each Mortgaged Property located in California or in
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than 20% of the
replacement value of the related improvements, calculated using methodology
acceptable to a reasonably prudent commercial mortgage lender with respect to
similar properties in the same area or earthquake zone. Each Mortgaged Property
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas is insured by
windstorm insurance in an amount at least equal to the lesser of (i) the
outstanding principal balance of the related Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located on such Mortgaged
Property (less physical depreciation). All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without at least 10 days' prior written notice to the mortgagee; and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured. Additionally, for any Mortgage Loan having a Cut-off Date
Balance equal to or greater than $20,000,000, the insurer for all of the
required coverages set forth herein has a claims paying ability or financial
strength rating from Fitch or S&P of not less than A-minus (or the equivalent),
or from ▇▇▇▇▇'▇ of not less than A3 (or the equivalent), or from DBRS of not
less than A(low) (or the equivalent), or from A.M. Best Company of not less than
"A-minus: V" (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Material Leasehold Estate. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
promptly submitted for recordation; such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related Mortgage; and, if
such Ground Lease has been recorded, there has been no material change in
the terms of such Ground Lease since its recordation, with the exception of
material changes reflected in written instruments which are a part of the
related Mortgage File; and if required by such Ground Lease, the lessor
thereunder has received notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other than
the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to cure
any default under such Ground Lease, which is curable after the receipt of
notice of any such default, before the lessor thereunder may terminate such
Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than 20 years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has a term, which together with extension options
that are exercisable by the lender upon its taking possession of the
Mortgagor's leasehold interest would (if such options are exercised) cause
the term of such Ground Lease to extend not less than 20 years beyond the
Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the mortgagee
under such Mortgage Loan fails to cure a default of the lessee that is
susceptible to cure by the mortgagee under such Ground Lease following
notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage or related Mortgage Loan documents, taken together, any related
casualty insurance proceeds (other than de minimis amounts for minor
casualties) with respect to the leasehold interest will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed or consented to by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the
lending area where the related Mortgaged Property is located at the time of
the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended,
modified, cancelled or terminated without the prior written consent of the
mortgagee under such Mortgage Loan, and (ii) any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Accordingly,
each Mortgage Loan is directly secured by an interest in real property (within
the meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and
either (1) the fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount of such
Mortgage Loan at the time the Mortgage Loan was (a) originated or modified
(within the meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b)
contributed to the Trust Fund, or (2) substantially all of the proceeds of such
Mortgage Loan were used to acquire, improve or protect an interest in real
property and such interest in real property was the only security for the
Mortgage Loan at the time such Mortgage Loan was originated or modified. For
purposes of the previous sentence, the fair market value of the referenced
interest in real property shall first be reduced by (1) the amount of any lien
on such interest in real property that is senior to the Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is in
parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than (a) amounts paid by the tenant as specifically provided under a
related lease or by the property manager or (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses incurred in
connection with the origination and funding of the Mortgage Loan), for the
payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) subject to
available funds, a portion of the cash flow generated by such Mortgaged Property
will be applied each month to pay down the principal balance thereof in addition
to the principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority
against or affecting the Mortgagor under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Mortgagor or Mortgaged
Property, would materially and adversely affect the Value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Mortgagor to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. Except with respect to another Mortgage Loan
(which will also be an asset of the Trust Fund) cross-collateralized with a
Mortgage Loan, none of the Mortgage Loans permits the related Mortgaged Property
to be encumbered by any other mortgage lien junior to or of equal priority with
the lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar criteria
specified therein. To the Seller's knowledge, except as indicated in the
preceding sentence and except for cases involving other Mortgage Loans, none of
the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. The related Mortgage Loan documents require the Mortgagor under each
Mortgage Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including any applicable Rating Agency fees, or would
permit the related mortgagee to withhold such consent if such costs and expenses
are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Other than any default interest or any late charges,
each Mortgage Loan (other than ARD Loans after their respective Anticipated
Repayment Dates) complied with, or was exempt from, all applicable usury laws in
effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor, the related lessee, franchisee
or operator was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated or such material licenses, permits
and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any Crossed
Loan Group, the sum of the amounts of the respective Mortgages recorded on the
related Mortgaged Properties with respect to such Mortgage Loans is at least
equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Loan Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a) (16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property or any other customary
commercial transaction and are not part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate, late charge or prepayment premium.
32. Inspection. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding 12
months.
33. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies or other publicly traded interests,
issuance of non-controlling new equity interests, transfers to an affiliate
meeting the requirements of the Mortgage Loan, transfers among existing direct
or indirect members, partners or shareholders in the Mortgagor, transfers among
affiliated Mortgagors with respect to cross-collateralized Mortgage Loans or
multi-property Mortgage Loans, transfers among co-Mortgagors, transfers of
worn-out or obsolete furniture, furnishings and equipment or transfers of a
similar nature to the foregoing meeting the requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $10,000,000 or more was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that during the term of the
Mortgage Loan it may only own and operate one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents generally further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor with respect to a Mortgage Loan
that is part of the same Crossed Loan Group as the subject Mortgage Loan), that
it holds itself out as a legal entity (separate and apart from any other
person), that it will not guarantee or assume the debts of any other person that
it will not commingle assets with affiliates (other than co-obligors under the
Mortgage Loan documents), and that it will not transact business with affiliates
(except to the extent required by any cash management provisions of the related
Mortgage Loan documents) except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan (which term
includes any Mortgage Loan that is part of a Loan Combination, but does not
include any related Non-Trust Loan) and not a participation interest in a
mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal and/or interest. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, (i) the
rate at which such ARD Loan accrues interest will increase by at least two (2)
percentage points and (ii) the related Mortgagor is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company for filing and/or recording pursuant to escrow instructions), in
all places necessary to perfect (to the extent that the filing or recording of
such a UCC financing statement can perfect such a security interest) a valid
security interest in the personal property of the related Mortgagor granted
under the related Mortgage. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property, then (a) the security agreements,
financing statements or other instruments, if any, related to the Mortgage Loan
secured by such Mortgaged Property establish and create a valid security
interest in all items of personal property owned by the related Mortgagor which
are material to the conduct in the ordinary course of the Mortgagor's business
on the related Mortgaged Property, subject only to purchase money security
interests, personal property leases and security interests to secure revolving
lines of credit and similar financing; and (b) one or more UCC financing
statements covering such personal property have been filed and/or recorded (or
have been sent for filing or recording or submitted to a title company for
filing or recording pursuant to escrow instructions) wherever necessary to
perfect under applicable law such security interests (to the extent a security
interest in such personal property can be perfected by the filing of a UCC
financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee (or, in the case of each of the Arundel ▇▇▇▇▇ Trust
Mortgage Loan and the Apple Hotel Portfolio Trust Mortgage Loan, in favor of the
related Outside Trustee) constitutes a legal, valid and, subject to the
limitations and exceptions set forth in representation 13 hereof, binding
assignment thereof from the relevant assignor to the Trustee (or, in the case of
each of the Arundel ▇▇▇▇▇ Trust Mortgage Loan and the Apple Hotel Portfolio
Trust Mortgage Loan, in favor of the related Outside Trustee); provided that, if
the related security agreement and/or UCC Financing Statement has been recorded
in the name of MERS or its designee, no assignment of security agreement and/or
UCC Financing Statement in favor of the Trustee is required to be prepared or
delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS. Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required in
order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Unless such Mortgage Loan provides
for interest only payments prior to its Stated Maturity Date or, in the case of
an ARD Loan, prior to its Anticipated Repayment Date, each Mortgage Loan begins
to amortize prior to its Stated Maturity Date or, in the case of an ARD Loan,
prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal or affiliate
of such Mortgagor or an entity controlled by a principal or affiliate of such
Mortgagor, for damages, liabilities, expenses or claims
sustained in connection with the Mortgagor's fraud, material, intentional
misrepresentation, material intentional physical waste or misappropriation of
any tenant security deposits (in some cases, only after foreclosure or an action
in respect thereof), rent (in some cases, only after an event of default),
insurance proceeds or condemnation awards. The related Mortgage Loan documents
contain provisions pursuant to which the related Mortgagor, a principal or
affiliate of such Mortgagor or an entity controlled by a principal or affiliate
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws relating to hazardous
material at the related Mortgaged Property.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in whole
or in material part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon, except for any portion of such Mortgaged Property
that consists of a leasehold estate that is not a material ground lease, which
ground lease is not the subject of representation 18.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the applicable Master Servicer). All such escrow
deposits are being conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any improvements and
as to disbursement of any funds escrowed for such purpose, which requirements
were to have been complied with on or before the date hereof, have been complied
with in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, together with such other
information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than 15 days from the applicable Due Date or five (5)
days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession related to
such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
Annex A (to Schedule I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
REPRESENTATION 4
Lien; Valid Assignment.
Arundel ▇▇▇▇▇ (3407568) Pursuant to an exception to the related title
policy, the related Mortgaged Property is
subject to a Ground Lease to the ▇▇▇▇ Arundel
Community College Foundation, Inc. and a
Sublease to the Board of Trustees of ▇▇▇▇
Arundel Community College. The owner of the fee
simple estate has agreed to subordinate its
interest to the lien of the deed of trust in
favor of The Bank of New York, as evidenced by
the Subordination, Non-Disturbance, Attornment
and Estoppel agreement dated April 15, 2002.
The foregoing encumbers only Lot 2 of the
related Mortgaged Property, which was not
assigned value in underwriting.
REPRESENTATION 5
Assignment of Leases and Rents.
To the extent that the related Borrower leases all or part of the related
Mortgaged Property to a master lessee or operating lease, which master lessee or
operating lessee, as applicable, enters into leases with tenants of such related
Mortgaged Property, such master lessee or operating lessee, as applicable, owns
an interest in any payments due under such related leases.
Arundel ▇▇▇▇▇ (3407568) The owner of the related Mortgaged Property
owns an interest in any payments due under such
related leases. The related Mortgage Loan is
secured by an Indemnity Guaranty, an Indemnity
Deed of Trust and Security Agreement and an
Indemnity Assignment of Leases and Rents, which
documents have been executed by the owner(s) of
the related Borrower. This structure is known
as an Indemnity Deed of Trust, which is
specific to the State of Maryland.
REPRESENTATION 6
Mortgage Status; Waivers and Modifications.
Advance Auto Parts (3290376) The related Mortgage Loan agreement was amended
to extend the defeasance lockout period.
VE- Grove Apartments (3293446)
Arundel ▇▇▇▇▇ (3407568) The original Note A-3 ($128,333,333) was
severed into a new replacement Note A-3
($64,166,667 (included in the Trust Fund)) and
a new replacement Note A-4 ($64,166,666).
Apple Hotel Portfolio The original Note A-3 ($86,212,500) and the
(3409444) original Note A-4 ($86,212,500) were was
consolidated and simultaneously split and
severed into a new Note A-3 ($63,106,250
(included in the Trust Fund)) and a new Note
A-4 ($109,318,750).
REPRESENTATION 10
Mortgage Provisions.
The Mortgage Loan documents for many of the related Mortgage Loans require only
that the related Borrower maintain coverages on the related Mortgaged Property
as are required by mortgagee upon the closing of the Mortgage Loan.
Arundel ▇▇▇▇▇ (3407568) The related Borrower's obligation to maintain
terrorism insurance is subject to a cap in the
amount of premiums the related Borrower is
obligated to pay for such insurance.
Apple Hotel Portfolio The related Borrower will not be required to
(3409444) obtain a terrorism insurance policy provided:
(I) such Borrower confirms to the mortgagee in
writing that it is required to protect and hold
the mortgagee harmless from any losses
associated with such risks by, among other
things, either (A) depositing with the
mortgagee sums sufficient to pay for all
uninsured costs related to a restoration of the
applicable individual Mortgaged Property
following any act of terrorism or (B) provided
that such act of terrorism occurs after the
"Permitted Prepayment Date" (as defined in the
related Mortgage Loan documents), prepaying the
related Mortgage Loan in accordance with the
terms of the related Mortgage Loan documents;
(II) Inland American Real Estate Trust, Inc.
("Terrorism Insurance Guarantor") executes a
guaranty guaranteeing in the event of any act
of terrorism, payment to the mortgagee of any
sums that the related Mortgage Borrower is
obligated to pay to the related mortgagee under
clause (I) above and (III) the Terrorism
Insurance Guarantor maintains a net worth of at
least $500,000,000, maintains a direct or
indirect ownership interest in the related
Borrower, and, subject to certain limitations,
the aggregate loan to value ratio for the
Mortgaged Properties on which the Terrorism
Insurance Guarantor has a direct or indirect
ownership interest shall not exceed 55%.
REPRESENTATION 11
Trustee under Deed of Trust.
Some Mortgage Loan documents provide that the Trustee is entitled to all
reasonable fees and expenses in connection with the performance by the Trustee
of its duties under the applicable Mortgage.
REPRESENTATION 14
Insurance.
Arundel ▇▇▇▇▇ (3407568) The related Borrower's obligation to maintain
terrorism insurance is subject to a cap in the
amount of premiums the related Borrower is
obligated to pay for such insurance.
Arundel ▇▇▇▇▇ (3407568) The loan amount is above $20 million, and the
related loan agreement provides that Policies
(as defined in the Mortgage Loan documents) are
required to be issued by financially sound and
responsible insurance companies authorized to
do business in Maryland and having a claims
paying ability rating of (i) if there is only
one insurance company issuing the Policies, "A"
or better (and the equivalent thereof) by at
least two of the Rating Agencies rating the
Securities (as defined in the Mortgage Loan
documents) (one of which must be S&P if S&P is
rating the Securities, and one of which must be
Moody's if ▇▇▇▇▇'▇ is rating the Securities),
or if only one Rating Agency is rating the
Securities, then only by such Rating Agency, or
(ii) if there are more than one, but less than
five, insurance companies collectively issuing
the Policies, 75% or more of the insured amount
are required to have a claims paying ability
rating of "A" or better (and the equivalent
thereof) by at least two of the Rating Agencies
rating the Securities (one of which must be S&P
if S&P is rating the Securities, and one of
which must be Moody's if ▇▇▇▇▇'▇ is rating the
Securities), or if only one Rating Agency is
rating the Securities, then only by such Rating
Agency, and the remaining 25% (or lesser
remaining amount) of which are required to have
a claims paying ability rating of "BBB" or
better (and the equivalent thereof) by at least
two of the Rating Agencies rating the
Securities (one of which must be S&P if S&P is
rating the Securities, and one of which must be
Moody's if ▇▇▇▇▇'▇ is rating the Securities),
or if only one Rating Agency is rating the
Securities, then only by such Rating Agency, or
(iii) if there are five or more insurance
companies collectively issuing the Policies,
60% or more of the insured amount are required
to have a claims paying ability rating of "A"
or better (and the equivalent thereof) by at
least two of the Rating Agencies rating the
Securities (one of which must be S&P if S&P is
rating the Securities, and one of which must be
Moody's if ▇▇▇▇▇'▇ is rating the Securities),
or if only one Rating Agency is rating the
Securities, then only by such Rating Agency,
and the remaining 40% (or lesser remaining
amount) of which are required to have a claims
paying ability rating of "BBB" or better (and
the equivalent thereof) by at least two of the
Rating Agencies rating the Securities (one of
which must be S&P if S&P is rating the
Securities, and one of which must be Moody's if
▇▇▇▇▇'▇ is rating the Securities), or if only
one Rating Agency is rating the Securities,
then only by such Rating Agency.
Apple Hotel Portfolio The related Borrower will not be required to
(3409444) obtain a terrorism insurance policy provided:
(I) such Borrower confirms to the mortgagee in
writing that it is required to protect and hold
the mortgagee harmless from any losses
associated with such risks by, among other
things, either (A) depositing with the
mortgagee sums sufficient to pay for all
uninsured costs related to a restoration of the
applicable individual Mortgaged Property
following any act of terrorism or (B) provided
that such act of terrorism occurs after the
"Permitted Prepayment Date" (as defined in the
related Mortgage Loan documents), prepaying the
related Mortgage Loan in accordance with the
terms of the related Mortgage Loan documents;
(II) the Terrorism Insurance Guarantor executes
a guaranty guaranteeing in the event of any act
of terrorism, payment to the mortgagee of any
sums that the related Mortgage Borrower is
obligated to pay to the related mortgagee under
clause (I) above and (III) the Terrorism
Insurance Guarantor maintains a net worth of at
least $500,000,000, maintains a direct or
indirect ownership interest in the related
Borrower, and, subject to certain limitations,
the aggregate loan to value ratio for the
Mortgaged Properties on which the Terrorism
Insurance Guarantor has a direct or indirect
ownership interest shall not exceed 55%.
Insurance companies providing the insurance
required by the related Mortgage Loan documents
must have a claims paying ability rating of
"A-" or better or its equivalent by at least
two of the Rating Agencies, one of which shall
be S&P, or by a syndicate of insurers through
which at least 60% of the coverage is with
carriers having such claims paying ability
ratings (provided that all such carriers shall
have claims paying ability ratings of not less
than "BBB" by S&P and the equivalent rating by
other Rating Agencies).
REPRESENTATION 18
Material Leasehold Estate.
Arundel ▇▇▇▇▇ (3407568) Pursuant to an exception to the related title
policy, the related Mortgaged Property is
subject to a Ground Lease to the ▇▇▇▇ Arundel
Community College Foundation, Inc. and a
Sublease to the Board of Trustees of ▇▇▇▇
Arundel Community College. The owner of the fee
simple estate has agreed to subordinate its
interest to the lien of the deed of trust in
favor of The Bank of New York, as evidenced by
the Subordination, Non-Disturbance, Attornment
and Estoppel agreement dated April 15, 2002.
The foregoing encumbers only Lot 2 of the
related Mortgaged Property, which was not
assigned value in underwriting.
McWheel Properties (3293818) The term of the Ground Lease (the "Term") began
on August 1, 1994 and continues for 20
consecutive years from the first day of the
month in which the Tenant's (as defined in the
related Mortgage Loan documents) primary tenant
assumes occupancy or the beginning of the
primary tenant's lease, whichever occurs first.
The Tenant is entitled to four 5-year options
to extend the Term. The Stated Maturity Date of
the related Mortgage Loan is November 1, 2017.
REPRESENTATION 20
Advancement of Funds.
Arundel ▇▇▇▇▇ (3407568) The related Mortgaged Property is owned by the
owner(s) of the related Borrower and such
related Borrower executed the related Mortgage
Note and related loan agreement (if any). The
related Mortgage Loan is secured by an
Indemnity Guaranty, an Indemnity Deed of Trust
and Security Agreement and an Indemnity
Assignment of Leases and Rents, which documents
have been executed by the owner(s) of the
related Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to
the State of Maryland.
REPRESENTATION 23
Other Mortgage Liens.
Arundel ▇▇▇▇▇ (3407568) The related Mortgaged Property secures four
separate pari passu promissory notes in the
following amounts:
Note A-1: $128,333,334
Note A-2: $128,333,333
Note A-3: $ 64,166,667
(included in the Trust Fund)
Note A-4: $ 64,166,666
Apple Hotel Portfolio The related Mortgaged Property secures four
(3409444) separate pari passu promissory notes in the
following amounts:
Note A-1: $ 86,212,500
Note A-2: $ 86,212,500
Note A-3: $ 63,106,250
(included in the Trust Fund)
Note A-4: $109,318,750
REPRESENTATION 28
Releases of Mortgaged Properties.
Arundel ▇▇▇▇▇ (3407568) The related Borrower may: (i) make transfers of
immaterial or non-income producing portions of
the related Mortgaged Property to any federal,
state or local government or any political
subdivision thereof in connection with takings
or condemnations of any portion of the related
Mortgaged Property for dedication or public
use, (ii) make transfers of non-income
producing portions of the related Mortgaged
Property, including portions of the related
Mortgaged Property's "ring road" to third
parties, including, owners of out parcels and
department store pads, pads for office
buildings, hotels or other properties for the
purpose of erecting and operating additional
structures or parking facilities whose use is
integrated and consistent with the use of the
related Mortgaged Property and (iii) dedicate
portions of the related Mortgaged Property or
grant easements, restrictions, covenants,
reservations and rights of way in the ordinary
course of business for traffic circulation,
ingress, egress, parking, access, utilities
lines or for other similar purposes; provided,
however, it will be a condition to any of the
transfers in (ii) and (iii) above that no
transfer, conveyance or other encumbrance
results in a material adverse effect as stated
in an officer's certificate.
In connection with the sale of air rights above
the Improvements located on the related
Mortgaged Property to a third party for
development of a condominium or vertical space
subdivision of improvements to be constructed
by such third party or sold in the air space,
the mortgagee will also partially release from
the lien of its security such air space for no
consideration to be paid by the related
Borrower or Guarantor to the mortgagee. The
mortgagee is permitted to require a REMIC
opinion.
Apple Hotel Portfolio Pursuant to Section 2.3.1(b) of the related
(3409444) Mortgage Loan agreement, the related Borrower
is permitted to release individual Mortgaged
Properties upon the satisfaction of certain
conditions including, among other things: (1)
no event of default exists; (2) payment of a
Release Price equal to 120% of the "Allocated
Principal Amount" (as defined in the related
Mortgage Loan documents), plus all accrued
interest and all amounts due in connection with
the release including any "Prepayment
Consideration" (as defined in the related
Mortgage Loan documents); (3) after giving
effect to the release the loan-to-value ratio
for the remaining Mortgaged Properties is not
greater than the lesser of (x) 55% or (y) the
loan-to-value ratio for the related Mortgaged
Properties immediately preceding the release;
(4) after giving effect to the release the
aggregate debt service coverage ratio with
respect to remaining Mortgaged Properties is
not less than the greater of (a) 1.65x or (b)
the debt service coverage ratio for the
Mortgaged Properties for the 12 calendar months
preceding the release and (4) after giving
effect to the release, no more than 40% of the
"Aggregate Net Cash Flow" (as defined in the
related Mortgage Loan documents) shall result
from Mortgaged Properties in one State or one
market.
Pursuant to Section 2.7 of the related Mortgage
Loan agreement, the related Borrower is
permitted to release an individual Mortgaged
Property (a "Substituted Property") by
substituting therefor another limited or full
service hotel property (the "Replacement
Property"), provided that (1) the Allocated
Principal Amount of the proposed Substituted
Property, when aggregated with the Allocated
Principal Amounts for all previously
Substituted Properties, may not exceed
$86,212,500.00, (2) the Replacement Property is
not located in Texas (unless an individual
Mortgaged Property located in Texas has been
previously released) and (3) upon the
satisfaction of certain conditions including,
among other things, (a) the appraised value of
the Replacement Property is not less than the
appraised value of the Substituted Property at
the origination of the Mortgage Loan or on the
date of the substitution; (b) after giving
effect to the substitution, the aggregate debt
service coverage ratio for the Mortgaged
Properties (including the Replacement Property
but excluding the Substituted Property) is not
less than the greater of (i) the aggregate debt
service coverage ratio on the origination date
of the Mortgage Loan or (ii) the aggregate debt
service coverage ratio (including the
Substituted Property but excluding the
Replacement Property) as of the date
immediately preceding the substitution; (c) the
"Net Operating Income" (as defined in the
related Mortgage Loan documents) for the
Replacement Property does not show a downward
trend over three consecutive years prior to the
date of substitution; (d) the debt service
coverage ratio for the 12 months immediately
preceding the substitution for the Replacement
Property is not less than the debt service
coverage ratio for the 12 months immediately
preceding the substitution for the related
Substituted Property; (e) the Lender shall have
received confirmation in writing from the
Rating Agencies that such substitution will not
result in a withdrawal, qualification or
downgrade of the respective ratings in effect
immediately prior to such substitution for any
class of securities issued in connection with
any Securitization then outstanding; (f) no
event of default the exists; (g) the Lender
shall have received an opinion of counsel
acceptable to the Rating Agencies that the
substitution does not constitute a "significant
modification" of the Mortgage Loan under
Section 1001 of the Code or otherwise cause a
tax to be imposed on a "prohibited transaction"
by any REMIC holding an interest in the
Mortgage Loan; and (h) the related Borrower
shall have paid to the Lender a substitution
fee equal to 1% of the Substituted Property's
Allocated Principal Amount, and shall have paid
or reimbursed the Lender for all costs and
expenses incurred by it (including, without
limitation, reasonable attorneys fees and
disbursements) in connection with the
substitution and shall have paid all recording
charges, filing fees, taxes or other expenses
(including, without limitation, mortgage and
intangibles taxes and documentary stamp taxes)
payable in connection with the substitution,
along with all costs and expenses of the Rating
Agencies incurred in connection with the
substitution.
The related Borrower may, without the consent
of the Lender, grant easements, restrictions,
covenants, reservations and rights of way in
the ordinary course of business for access,
parking, water and sewer lines, telephone and
telegraph lines, electric lines and other
utilities or for other
similar purposes, provided that the foregoing
shall not materially impair the utility and
operation of any individual Mortgaged Property
or materially adversely affect the value of an
individual Mortgaged Property or the Net
Operating Income of an individual Mortgaged
Property.
Shoprite - Franklin Township The related mortgagee shall not unreasonably
(3292935) withhold its consent to (1) a cross easement
between the related Borrower and an affiliate
of the related Borrower that acquires property
adjacent to the Mortgaged Property or (2)
amendments to the reciprocal easement agreement
between the related Borrower and
Somerset-▇▇▇▇▇▇▇▇▇ ▇▇, LLC, in either case, to
allow for utility easements, access over
existing driveways on the Mortgaged Property,
common parking or construction of a sound
barrier wall; provided that the conditions in
the Mortgage are met, including (but not
limited to) the condition that the easements
must not materially and adversely affect the
access, use, value or marketability of the
Mortgaged Property.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Pursuant to Section 51 of the Mortgage, the
(3291903) related Borrower may release a 45,000 square
foot pad identified on Exhibit D to the related
First Amendment to Mortgage, Security Agreement
and Fixture Filing (which pad was not assigned
value in underwriting the Mortgage Loan)
provided that certain conditions are satisfied
including, without limitation, reimbursement of
the mortgagee by the related Borrower of all
reasonable out-of-pocket costs and expenses in
excess of the application fee (including,
without limitation, attorneys' fees and
disbursements, and Rating Agency fees and
expenses, if any) incurred or anticipated to be
incurred by the mortgagee in connection with
substitution of collateral.
REPRESENTATION 30
Defeasance and Assumption Costs.
Arundel ▇▇▇▇▇ (3407568) In connection with any defeasance, the related
Borrower is not responsible for the payment of
servicing fees in excess of $10,000.
REPRESENTATION 43
Recourse.
Guarantors of the recourse carveout liability provisions for Mortgage Loans in
which the Mortgaged Property is owned by tenants in common may be limited such
that each related tenant in common and/or guarantor is liable only for its own
acts or omissions.
Arundel ▇▇▇▇▇ (3407568) The related Mortgaged Property is owned by the
owner(s) of the related Borrower and such
related Borrower executed the related Mortgage
Note and related loan agreement (if any). The
related Mortgage Loan is secured by an
Indemnity Guaranty, an Indemnity Deed of Trust
and Security Agreement and an Indemnity
Assignment of Leases and Rents, which documents
have been executed by the owner(s) of the
related Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to
the State of Maryland. Only the Borrower, not
the related Mortgagor, is responsible for the
recourse carveout provisions of the related
Mortgage Loan documents.
200 - ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ The recourse liability provisions set forth in
(3291903) the Mortgage Loan documents are subject to a
$15,000,000 cap that expires on September 1,
2018. The balance of the Mortgage Loan is
$5,350,000, and the maturity date is August 1,
2017.
REPRESENTATION 45
Fee Simple Interest.
Arundel ▇▇▇▇▇ (3407568) The related Mortgaged Property is owned by the
owner(s) of the related Borrower and such
related Borrower executed the related Mortgage
Note and related loan agreement (if any). The
related Mortgage Loan is secured by an
Indemnity Guaranty and an Indemnity Deed of
Trust and Security Agreement and an Indemnity
Assignment of Leases and Rents, which documents
have been executed by the owner(s) of the
related Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to
the State of Maryland.
REPRESENTATION 47
Operating Statements.
Arundel ▇▇▇▇▇ (3407568) The related loan agreement requires the related
Borrower to either provide financial statements
or cause the owner of the related Mortgage
Property to provide such financial statements.
REPRESENTATION 53
Origination of Mortgage Loans.
Manpower Inc. Headquarters The related Mortgage Loan was originated by
(3292026) LaSalle Bank National Association.
Shoprite - Franklin Township
(3292935)
Mission Medical (3292117)
VE- Grove Apartments (3293446)
McWheel Properties (3293818)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
(3290343)
200 - ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
(3291903)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (3290038)
Quality Self Storage (3292638)
Watkinsville Mini Storage
(3293644)
▇▇▇▇▇ ▇▇▇▇▇ Apartments
(3290699)
Olympic Crown Storage
(3292364)
Sundale MHC (3293107)
Upper Marlboro Office Building
(3293396)
Advance Auto Parts (3290376)
Apple Hotel Portfolio The Mortgage Loan was originated by the Loan
(3409444) Seller and Bear ▇▇▇▇▇▇▇ Commercial Mortgage,
Inc.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
[NONE.]
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
[NONE.]
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[Attached]
▇▇▇▇ ▇▇▇▇-▇▇: MORTGAGE LOAN SCHEDULE
LOAN # LOAN GROUP PROPERTY NAME LOAN / PROPERTY ORIGINATOR PROPERTY TYPE
---------------------------------------------------------------------------------------------------------------
2 1 Arundel ▇▇▇▇▇ Loan BofA Retail
3 1 Apple Hotel Portfolio Loan BofA Hospitality
3.01 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Property BofA Hospitality
3.02 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Property BofA Hospitality
3.03 1 Hilton Garden Inn Westbury Property BofA Hospitality
3.04 1 Marriott Residence Inn Cypress Property BofA Hospitality
3.05 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Property BofA Hospitality
3.06 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Property BofA Hospitality
3.07 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Property BofA Hospitality
3.08 1 Marriott Residence Inn West University Property BofA Hospitality
3.09 ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Property BofA Hospitality
3.1 1 Marriott Residence Inn Tucson Property BofA Hospitality
3.11 1 Marriott Residence Inn Westchase Property BofA Hospitality
3.12 1 Marriott Residence Inn Nashville Property BofA Hospitality
3.13 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ University Property BofA Hospitality
3.14 1 Marriott Residence Inn Hauppauge Property BofA Hospitality
3.15 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Property BofA Hospitality
3.16 1 Hilton Homewood Suites Albuquerque Property BofA Hospitality
3.17 1 Marriott Residence Inn Cranbury Property BofA Hospitality
3.18 1 Marriott Residence Inn Somerset Property BofA Hospitality
3.19 1 Marriott Residence Inn Dallas-Fort Worth Property BofA Hospitality
3.2 1 Hilton Garden Inn Tampa Property BofA Hospitality
3.21 1 Marriott Springhill Suites Danbury Property BofA Hospitality
3.22 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Property BofA Hospitality
3.23 ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Property BofA Hospitality
3.24 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Property BofA Hospitality
3.25 1 Marriott Residence Inn Brownsville Property BofA Hospitality
3.26 ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Property BofA Hospitality
3.27 1 Hilton Homewood Suites Solon Property BofA Hospitality
6 1 Manpower Inc. Headquarters Loan ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Loan BofA Retail
35 1 Mission Medical Loan BofA Office
36 1 Bally's at Montclair Entertainment Plaza Loan BofA Other
37 2a VE - Grove Apartments Loan BofA Multifamily
47 1 McWheel Properties Loan BofA Retail
48 1 Triple Crown Plaza Loan BofA Retail
49 1 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Loan BofA Industrial
50 1 200 - ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Loan BofA Retail
76 1 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Loan BofA Office
81 1 Quality Self Storage Loan BofA Self Storage
83 1 Watkinsville Mini Storage Loan BofA Self Storage
87 2a ▇▇▇▇▇ ▇▇▇▇▇ Apartments Loan BofA Multifamily
88 1 Olympic Crown Storage Loan BofA Self Storage
90 2a Sundale MHC Loan BofA Manufactured Housing
91 1 Upper Marlboro Office Building Loan BofA Office
92 1 Advance Auto Parts Loan ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇
▇▇▇▇ # ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ CODE BALANCE ($)
-----------------------------------------------------------------------------------------------------------------
2 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 64,166,667
3 Various Various Various Various Various 63,106,250
3.01 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,638,114
3.02 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,177,804
3.03 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,967,358
3.04 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,778,872
3.05 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,451,309
3.06 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,052,377
3.07 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,933,430
3.08 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,397,251
3.09 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,366,141
3.1 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,336,862
3.11 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,296,603
3.12 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,217,914
3.13 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,009,299
3.14 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,978,189
3.15 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1,888,521
3.16 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,859,242
3.17 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1,829,962
3.18 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1,809,833
3.19 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,749,444
3.2 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,731,144
3.21 ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1,670,756
3.22 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,641,476
3.23 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,432,860
3.24 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,381,622
3.25 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,262,674
3.26 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,242,544
3.27 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,004,649
6 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 46,620,001
15 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 12,100,000
35 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,600,000
36 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,500,000
37 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,488,871
47 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,715,788
48 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,500,000
49 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,352,119
50 200 - ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,350,000
76 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,580,905
81 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,100,000
83 ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,972,317
87 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,485,535
88 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,361,483
90 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,000,000
91 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 991,826
92 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 935,952
ORIGINAL MONTHLY P&I DEBT ANNUAL P&I DEBT INTEREST PRIMARY MASTER TRUSTEE AND
LOAN # BALANCE ($) SERVICE ($) SERVICE ($) RATE % SERVICING FEE SERVICING FEE PAYING AGENT FEE
----------------------------------------------------------------------------------------------------------------
2 64,166,667 390,506.07 4,686,072.82 6.1400 0.050 0.020 0.0022
3 63,106,250 341,825.52 4,101,906.24 6.5000 0.010 0.020 0.0022
3.01 5,638,114
3.02 4,177,804
3.03 3,967,358
3.04 3,778,872
3.05 3,451,309
3.06 3,052,377
3.07 2,933,430
3.08 2,397,251
3.09 2,366,141
3.1 2,336,862
3.11 2,296,603
3.12 2,217,914
3.13 2,009,299
3.14 1,978,189
3.15 1,888,521
3.16 1,859,242
3.17 1,829,962
3.18 1,809,833
3.19 1,749,444
3.2 1,731,144
3.21 1,670,756
3.22 1,641,476
3.23 1,432,860
3.24 1,381,622
3.25 1,262,674
3.26 1,242,544
3.27 1,004,649
6 47,000,000 288,165.47 3,457,985.64 6.2100 0.050 0.020 0.0022
15 12,100,000 74,187.28 890,247.36 6.2100 0.050 0.020 0.0022
35 7,600,000 45,260.90 543,130.80 5.9375 0.050 0.020 0.0022
36 7,500,000 37,019.62 444,235.42 5.8420 0.050 0.020 0.0022
37 7,600,000 45,565.84 546,790.08 6.0000 0.050 0.020 0.0022
47 5,800,000 42,199.68 506,396.16 6.1925 0.050 0.020 0.0022
48 5,500,000 35,020.95 420,251.40 6.5710 0.050 0.020 0.0022
49 5,400,000 33,178.52 398,142.24 6.2300 0.050 0.020 0.0022
50 5,350,000 33,991.75 407,901.00 6.5500 0.050 0.020 0.0022
76 2,600,000 16,673.88 200,086.56 6.6400 0.050 0.020 0.0022
81 2,100,000 12,957.39 155,488.68 6.2700 0.050 0.020 0.0022
83 2,000,000 12,922.73 155,072.76 6.0300 0.050 0.020 0.0022
87 1,500,000 8,849.11 106,189.32 5.8500 0.050 0.020 0.0022
88 1,370,000 8,913.13 106,957.56 6.7800 0.050 0.020 0.0022
90 1,000,000 6,446.15 77,353.80 6.6900 0.050 0.020 0.0022
91 1,000,000 6,098.76 73,185.12 6.1600 0.050 0.020 0.0022
92 950,000 6,225.82 74,709.84 6.1800 0.050 0.020 0.0022
MONTHLY
SUB SERVICIN ADMIN. NET MORTGAGE PAYMENT MATURITY/ AMORT
LOAN # FEE RATE FEE % RATE % ACCRUAL TYPE TERM DATE REM. TERM ARD DATE TERM
----------------------------------------------------------------------------------------------------
2 0.0722 6.06780 Actual/360 84 1 74 8/1/2014 360
3 0.0322 6.46780 30/360 120 1 115 1/1/2018 0
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.2
3.21
3.22
3.23
3.24
3.25
3.26
3.27
6 0.0100 0.0822 6.12780 Actual/360 120 1 111 9/1/2017 360
15 0.0722 6.13780 Actual/360 120 1 114 12/1/2017 360
35 0.0722 5.86530 Actual/360 120 1 110 8/1/2017 360
36 0.0722 5.76980 Actual/360 120 1 104 2/1/2017 0
37 0.0722 5.92780 Actual/360 120 1 104 2/1/2017 360
47 0.0722 6.12030 Actual/360 120 1 113 11/1/2017 240
48 0.0722 6.49880 Actual/360 120 1 116 2/1/2018 360
49 0.0722 6.15780 Actual/360 60 1 50 8/1/2012 360
50 0.0722 6.47780 Actual/360 120 1 111 9/1/2017 360
76 0.0722 6.56780 Actual/360 120 1 111 9/1/2017 360
81 0.0722 6.19780 Actual/360 120 1 113 11/1/2017 360
83 0.0722 5.95780 Actual/360 120 1 110 8/1/2017 300
87 0.0722 5.77780 Actual/360 120 1 110 8/1/2017 360
88 0.0722 6.70780 Actual/360 120 1 112 10/1/2017 360
90 0.0722 6.61780 Actual/360 84 1 76 10/1/2014 360
91 0.0722 6.08780 Actual/360 120 1 111 9/1/2017 360
92 0.0722 6.10780 Actual/360 120 1 109 7/1/2017 300
PARTIAL
REM. ARD ARD ENVIRONMENTAL CROSS CROSS DEFEASANCE
LOAN # AMORT TITLE TYPE LOAN STEP UP INSURANCE DEFAULTED COLLATERALIZED ALLOWED
-------------------------------------------------------------------------------------------------
2 360 Fee No
3 0 Fee No
3.01 Fee No
3.02 Fee No
3.03 Fee No
3.04 Fee No
3.05 Fee No
3.06 Fee No
3.07 Fee No
3.08 Fee No
3.09 Fee No
3.1 Fee No
3.11 Fee No
3.12 Fee No
3.13 Fee No
3.14 Fee No
3.15 Fee No
3.16 Fee No
3.17 Fee No
3.18 Fee No
3.19 Fee No
3.2 Fee No
3.21 Fee No
3.22 Fee No
3.23 Fee No
3.24 Fee No
3.25 Fee No
3.26 Fee No
3.27 Fee No
6 351 Fee No
15 360 Fee No
35 360 Fee No
36 0 Fee No
37 344 Fee No
47 233 Fee/Leasehold No
48 360 Fee No
49 350 Fee No
50 360 Fee No
76 351 Fee No
81 360 Fee No
83 290 Fee No
87 350 Fee No
88 352 Fee No
90 360 Fee No
91 351 Fee No
92 289 Fee No
UPFRONT UPFRONT UPFRONT
LETTER HOLDBACK ENGINEERING CAPEX RESERVE TI/LC RESERVE UPFRONT RE
LOAN # OF CREDIT LOCKBOX TYPE AMOUNT RESERVE ($) ($) ($) TAX RESERVE ($)
------------------------------------------------------------------------------------------------------------------------
2 Hard
3 Soft at Closing, Springing Hard
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.2
3.21
3.22
3.23
3.24
3.25
3.26
3.27
6 Hard
15 5,110,225
35 27,076
36 Hard
37 47,500 23,322
47
48 Yes 15,652
49
50 35,144
76 54,308
81 7,069
83 21,051
87
88 7,295
90 6,342
91
92 611
UPFRONT INS. UPFRONT OTHER MONTHLY CAPEX MONTHLY CAPEX MONTHLY TI/LC MONTHLY TI/LC
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) RESERVE CAP ($) RESERVE ($) RESERVE CAP ($)
---------------------------------------------------------------------------------------------------
2
3 604,595
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.2
3.21
3.22
3.23
3.24
3.25
3.26
3.27
6 10,591,494
15
35 848 388 9,312
36
37 15,860 3,813
47
48 4,437 125,312 351 12,636
49 11,064
50 3,296 1,345 24,586
76 8,466 1,415 462 50,931
81 1,075 412 24,740
83 2,120
87
88 1,726
90 2,412 435
91 1,348
92 641 88 304
MONTHLY RE TAX MONTHLY INS. MONTHLY OTHER ▇▇▇▇▇ ▇▇▇▇▇ TO
LOAN # RESERVE ($) RESERVE ($) RESERVE ($) TO LATE DEFAULT
----------------------------------------------------------------------
2 5 5
3 5 5
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.2
3.21
3.22
3.23
3.24
3.25
3.26
3.27
6 5 0
15 5 5
35 5,415 424 5 5
36 5 5
37 11,661 3,172 10 5
47 5 5
48 3,913 2,219 5 5
49 8,999 1,229 7 7
50 3,905 659 5 5
76 10,862 847 5 5
81 1,767 538 5 5
83 2,105 303 5 5
87 5,859 5 5
88 1,833 432 15 5
90 1,057 241 5 5
91 1,472 135 5 5
92 306 321 5 5
SCHEDULE III
MERS MORTGAGE LOANS
LOAN/PROPERTY NAME
Arundel ▇▇▇▇▇ (3407568)
Apple Hotel Portfolio (3409444)
Bally's at Montclair Entertainment Plaza (3403287)
Triple Crown Plaza (3408954)