Exhibit 99.3
EXECUTION
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of May 1, 1998 (the
"Agreement"), between Bank of America NT&SA (the "Seller") and First Union
Commercial Mortgage Securities, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Bank of America Mortgage
Loans") as provided herein. The Purchaser intends to deposit them, together with
the Other Mortgage Loans (as defined below), into a trust fund (the "Trust
Fund"), the beneficial ownership of which will be evidenced by multiple classes
(each, a "Class") of mortgage pass-through certificates (the "Certificates").
One or more "real estate mortgage investment conduit" ("REMIC") elections will
be made with respect to the Trust Fund. The Trust Fund will be created and the
Certificates will be issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of the Cut-off Date, among the
Purchaser as depositor, First Union National Bank as master servicer (in such
capacity, the "Master Servicer"), CRIIMI MAE Services Limited Partnership as
special servicer (in such capacity, the "Special Servicer"), and Norwest Bank
Minnesota, National Association as trustee (the "Trustee"). Concurrently with
the purchase of the Bank of America Mortgage Loans pursuant to this Agreement,
the Purchaser will also purchase certain multifamily and commercial mortgage
loans (the "Other Mortgage Loans"; and, collectively with the Bank of America
Mortgage Loans, the "Mortgage Loans") pursuant to two Mortgage Loan Purchase
Agreements, each dated as of May 1, 1998, between, in one case, First Union
National Bank and the Purchaser, and between, in the other case, Xxxxxx Brothers
Holdings Inc., doing business as Xxxxxx Capital, a division of Xxxxxx Brothers
Holdings Inc. and the Purchaser. The Other Mortgage Loans will likewise be
deposited into the Trust Fund. Capitalized terms used but not defined herein
have the respective meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase,
the Bank of America Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit A. The Mortgage Loan Schedule may be
amended to reflect the actual Mortgage Loans delivered to the Purchaser pursuant
to
the terms hereof. The Bank of America Mortgage Loans will have an aggregate
principal balance of $332,234,891.37 (the "Bank of America 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 received. The Bank of America 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 received), shall equal
an aggregate principal balance (the "Initial Pool Balance") of $3,408,048,239
(subject to a variance of plus or minus 5%). The purchase and sale of the Bank
of America Mortgage Loans shall take place on May 28, 1998 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
consideration for the Bank of America Mortgage Loans shall consist of a cash
amount equal to $343,641,549 (the "Aggregate Purchase Price") (which is equal to
the Bank of America Balance plus interest accrued on the Bank of America Balance
at the related Net Mortgage Rate for the period from and including the Cut-off
Date up to but not including the Closing Date less fees and expenses payable by
Bank of America) which cash amount shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title
and interest in and to the Bank of America Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Bank of
America Mortgage Loans identified on the Mortgage Loan Schedule as of such date
other than the primary servicing rights. 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 Bank of America 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 Bank of America
Mortgage Loans due on or before the Cut-off Date and principal prepayments
thereon), shall belong to, and be promptly remitted to, the Seller.
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(c) The Seller hereby represents and warrants that it has, on behalf
of the Purchaser, delivered to the Trustee, the documents and instruments
specified below with respect to each Bank of America Mortgage Loan (each a
"Mortgage File"). All Mortgage Files so delivered will be held by the Trustee in
escrow at all times prior to the Closing Date. Each Mortgage File shall, except
as otherwise disclosed on Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note (or a lost note affidavit
and indemnity with a copy of such Mortgage Note attached
thereto) together with any intervening endorsements thereon,
endorsed (without recourse, representation or warranty,
express or implied) to the order of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders of
First Union-Xxxxxx Brothers-Bank of America Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1998-C2 or in blank;
(ii) an original or copy of the Mortgage and any intervening
assignments thereof, in each case with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with any intervening assignments thereof, in each case with
evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form, 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 Mortgage Loan
otherwise included in the Mortgage File, in favor of NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee for the
registered holders of First Union-Xxxxxx Brothers-Bank of
America Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C2 in recordable form;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders of
First Union-Xxxxxx Brothers-Bank of America Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1998-C2;
(vi) originals or copies of any written modification agreements in
those instances where the terms or
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provisions of the Mortgage or Mortgage Note have been
modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued on the date of the origination
of such Mortgage Loan, or, if such policy has not been issued,
an irrevocable, binding commitment to issue such title
insurance policy; and
(viii) any filed copies (with evidence of filing) of any prior UCC
Financing Statements in favor of the originator of such
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, an original UCC-2 or UCC-3 assignment, in form
suitable for filing, as appropriate, in favor of NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee for the registered
holders of First Union-Xxxxxx Brothers-Bank of America
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1998-C2; and
(ix) an original or copy of any Ground Lease, any Credit Lease and
any Lease Enhancement Policy or Guaranty.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform Commercial
Code financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clause (iv) of subsection (c)
above and each UCC-2 and UCC-3 in favor of and delivered to the Trustee
constituting part of the Mortgage File. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, then the Seller shall prepare a substitute therefor or cure such defect
or cause such to be done, as the case may be, and the Seller shall deliver such
substitute or corrected document or instrument to the Purchaser or its designee.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each Bank
of America Mortgage Loan and in the Seller's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall be delivered or caused to be delivered by the Seller to the Master
Servicer or at the direction of the Master Servicer to the
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appropriate sub-servicer, together with any related escrow amounts and reserve
amounts.
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 corporation
validly existing under the laws of the United States of America and
possesses all requisite authority, power, licenses, permits and franchises
to carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may be
applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(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
By-Laws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a
material 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.
(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
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or its properties or have consequences that would 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) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the Bank of America Mortgage Loans to the Purchaser as a sale of the
Bank of America Mortgage Loans to the Purchaser in exchange for
consideration consisting of the Aggregate Purchase Price. The
consideration received by the Seller upon the sale of the Bank of America
Mortgage Loans to the Purchaser will constitute reasonably equivalent
value and fair consideration for the Bank of America Mortgage Loans. The
Seller will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Bank of America Mortgage Loans to
the Purchaser. The Seller is not selling the Bank of America Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud any of
the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I, Schedule II and Schedule III hereto for the benefit of
the Purchaser and the Trustee for the benefit of the Certificateholders as of
the Closing Date, with respect to (and solely with respect to) each Bank of
America Mortgage Loan. References in such representations and warranties to
"Mortgage Loan" and "Mortgage Loans" shall be deemed to mean
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"Bank of America Mortgage Loan" and "Bank of America Mortgage Loans,"
respectively.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Bank of America Mortgage Loan, 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 Bank of America Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days of any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach), if such Document Defect or Breach
shall materially and adversely affect the value of the related Bank of America
Mortgage Loan or the interest 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
solely due to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, repurchase the affected Bank
of America Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period; provided, however, that if such Document Defect or Breach
is capable of being cured but not within such 90-day period, such Document
Defect or Breach does not relate to the Bank of America Mortgage Loan not being
treated as a Qualified Mortgage, and the Seller has commenced and is diligently
proceeding with the cure of such Document Defect or Breach within such 90-day
period, such Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase the related Bank of America Mortgage Loan); and
provided, further, that with respect to such additional 90-day period the Seller
shall have delivered an Officer's Certificate to the Trustee setting forth the
reason 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. For a period
of two years from the Closing Date, so long as there remains any Mortgage File
relating to a Bank of America Mortgage Loan as to which there is any uncured
Document Defect, the Seller shall provide the Officer's Certificate to the
Trustee described above as to the reasons such Document Defect remains uncured
and as to the actions being taken to pursue cure; provided, however, that,
without limiting the effect of the forgoing provisions of this Section 3(c), if
such Document Defect shall materially and adversely affect the value of such
Bank of America Mortgage Loan or the interests of the holders of the Certificate
therein, the Seller shall in all cases on or prior to the second anniversary of
the Closing Date either cause such Document Defect to be cured or repurchase the
affected Mortgage Loan. In addition, the Seller agrees to pay all Servicing
Advances, Additional Trust Fund Expenses and interest accrued thereon incurred
by the
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Special Servicer or the Trust in connection with the Spa Business Center Loan
promptly upon receipt from the Special Servicer of an Officer's Certificate
containing the information required pursuant to Section 3.19(c) of the Pooling
and Servicing Agreement. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance as described in clause
(xii) of Schedule I hereof in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
(d) In connection with any repurchase of a Bank of America Mortgage
Loan contemplated hereby, the Trustee, the Custodian, the 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 each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the Seller or its designee in
the same manner, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which documents were previously
assigned to the Trustee.
SECTION 4. Representations and Warranties of the Purchaser. In order to induce
the Seller to enter into this Agreement, the Purchaser hereby represents and
warrants 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 North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Bank of America Mortgage Loans from the Seller and to transfer the Bank of
America Mortgage Loans to the Trustee.
(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, reorganization,
receivership 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) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis),
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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.
(d) None of the acquisition of the Bank of America Mortgage Loans by
the Purchaser, the transfer of the Bank of America Mortgage Loans to the
Trustee, and the execution, delivery or performance of this Agreement by the
Purchaser, conflicts or will conflict with, results or will result in a breach
of, or constitutes or will constitute a default under (A) any term or provision
of the Purchaser's Articles of Incorporation or Bylaws, (B) any term or
provision of any material agreement, contract, instrument or indenture, to which
the Purchaser is a party or by which the Purchaser is bound, or (C) any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Bank of America Mortgage Loans by the Seller to
the Purchaser as a sale of the Bank of America Mortgage Loans to the Purchaser
in exchange for consideration consisting of the Aggregate Purchase Price.
SECTION 5. Closing. The closing of the sale of the Bank of America Mortgage
Loans (the "Closing") shall be held at the offices of Xxxxxxx Xxxx & Xxxxxxxxx,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 at 10:00 A.M., New York time,
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; provided, however, that any material inaccuracy in any
representation and warranty set forth in or made pursuant to Section 3(b) shall
not affect the Purchaser's obligation to purchase the Mortgage Loans not
affected by such inaccuracy;
(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 in its 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 Trustee (or
a Custodian on its behalf) and the Master
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Servicer, respectively, all documents represented to have been or required to be
delivered to the Trustee and the Master Servicer pursuant to Section 2 of this
Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller 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; and
(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.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Bank of America Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters 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 date hereof;
(c) An Officer's Certificate from an officer of the Seller, 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 or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, 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, dated
the Closing Date, and upon which the Purchaser and the Underwriters may rely, to
the effect that (i) such officer has carefully examined the Prospectus and
nothing has come to his attention that would lead him to believe that the
Prospectus, as
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of the date of the Prospectus Supplement or as of the Closing Date, included or
includes any untrue statement of a material fact relating to the Bank of America
Mortgage Loans or omitted or omits to state therein a material fact necessary in
order to make the statements therein relating to the Bank of America Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Memorandum and nothing has come to his
attention that would lead him to believe that the Memorandum, as of the date
thereof or as of the Closing Date, included or includes any untrue statement of
a material fact relating to the Bank of America Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein related to the Bank of America Mortgage Loans, in the light of the
circumstances under which they were made, not misleading.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and a certificate of good standing of the Seller issued by the Office of
the Comptroller of the Currency of the United States not earlier than sixty (60)
days prior to the Closing Date;
(f) A written opinion of counsel for the Seller, substantially in
the form of Schedule V, with any modifications required by the Purchaser, its
counsel or Rating Agencies, dated the Closing Date and addressed to the
Purchaser, the Trustee, the Underwriters and each of the Rating Agencies,
together with such other written opinions as may be required by the Rating
Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement,
the Memorandum, the Diskette or, insofar as they are required to be filed as
part of the Registration Statement pursuant to the No-Action Letters, any
Computational Materials or ABS Term Sheets with respect to
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the Registered Certificates, or in any revision or amendment of or supplement to
any of the foregoing or (B) any items similar to Computational Materials and ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; but only if and to the extent that
(I) any such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon an untrue statement or omission with
respect to the Bank of America Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties contained in the Data File (it being herein
acknowledged that the Data File was used to prepare the Prospectus Supplement
including without limitation Annex A thereto, the Memorandum, the Diskette, the
Computational Materials and ABS Term Sheets with respect to the Registered
Certificates and any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates),
(II) any such untrue statement or alleged untrue statement or omission or
alleged omission of a material fact is with respect to, or arises out of or is
based upon an untrue statement or omission of a material fact with respect to,
the information regarding the Bank of America Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Seller set forth (X) in
the Prospectus Supplement and the Memorandum under the headings "Summary of the
Prospectus Supplement--The Mortgage Pool" or "Summary of the Memorandum--The
Mortgage Pool", as applicable, "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Pool" and (Y) on Annex A to the Prospectus
Supplement and, to the extent consistent therewith, on the Diskette, or (III)
any such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3; provided
that the indemnification provided by this Section 7 shall not apply to the
extent that such untrue statement or omission of a material fact was made as a
result of an error in the manipulation of, or in any calculations based upon, or
in any aggregation of the information regarding the Bank of America Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties set forth
in the Data File and Annex A to the Prospectus Supplement, including without
limitation the aggregation of such information with comparable information
relating to the Other Mortgage Loans in the Trust Fund. This indemnity agreement
will be in addition to any liability which the Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean
the registration statement No. 333-48943 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated May 11,
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1998, as supplemented by the prospectus supplement dated May 21, 1998 (the
"Prospectus Supplement"), relating to the Registered Certificates, including all
annexes thereto; "Memorandum" shall mean the private placement memorandum dated
May 28, 1998, relating to the Non-Registered Certificates, including all
exhibits thereto; "Registered Certificates" shall mean the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, and Class IO Certificates; "Non-Registered
Certificates" shall mean the Certificates other than the Registered
Certificates; "Computational Materials" shall have the meaning assigned thereto
in the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); "ABS Term Sheets shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
letters, the "No-Action Letters"); "Diskette" shall mean the diskette attached
to each of the Prospectus and the Memorandum; and "Data File" shall mean the
compilation of information and data regarding the Other Mortgage Loans and the
Bank of America Mortgage Loans (such information and data with respect to the
Bank of America Mortgage Loans being taken from the Bank of America Data File,
as supplemented by any modifications made subsequent to the date of the Bank of
America Data File) covered by the Agreed Upon Procedures Letter dated May 21,
1998 and rendered by Deloitte & Touche LLP (a "hard copy" of which Data File was
initialed on behalf of the Seller and the Purchaser). "Bank of America Data
File" shall mean the compilation of information and data regarding the Bank of
America Mortgage Loans, covered by the Agreed Upon Procedure Letter dated May
21, 1998 and rendered by Deloitte & Touche LLP.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party otherwise than under this Section 7. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel selected by the indemnifying party and satisfactory to such
indemnified party; provided, however, that
13
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(c) above. The amount
14
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(f) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser to the
extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the Bank of America Balance
represents of the Initial Pool Balance): (i) the costs and expenses of printing
(or otherwise reproducing) and delivering a preliminary and final Prospectus and
Memorandum relating to the Certificates; (ii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iii) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (iv) the fees charged by the Rating Agencies to rate
the Certificates so rated; (v) the expense of recording any assignment of
Mortgage or assignment of Assignment of Leases as contemplated by Section 2
hereof; and (vi) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Bank of America Mortgage
Loans included in the Prospectus and Memorandum. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
15
SECTION 9. Grant of a Security Interest. It is the express intent of the parties
hereto that the conveyance of the Bank of America Mortgage Loans by the Seller
to the Purchaser as provided in Section 2 hereof be, and be construed as, a sale
of the Bank of America Mortgage Loans by the Seller to the Purchaser and not as
a pledge of the Bank of America 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 Bank of America 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 Bank of America 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 Articles 8 and 9 of the Uniform Commercial Code
of the applicable jurisdiction; (ii) the conveyance provided for in Section 2
hereof 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
Bank of America Mortgage Loans, and all amounts payable to the holder of the
Bank of America 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, from time to time held or invested
in the Certificate Account, the Distribution Account or, if established, the REO
Account (each as defined in the Pooling and Servicing Agreement) 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 hereof
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 9-305 of the Uniform
Commercial Code 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 Bank of America 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.
16
SECTION 10. Notices. All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof 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 transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Bank of America 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 which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. 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.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to execute
and deliver such instruments and take such further actions as the other party
may, from time to time, reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
17
SECTION 16. Successors and Assigns. The rights and obligations of the Seller
under this Agreement shall not be assigned by the Seller without the prior
written consent of the Purchaser, except that any person into which the Seller
may be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Purchaser, the
Underwriters (as intended third party beneficiaries hereof) and their permitted
successors and assigns, and the officers, directors and controlling persons
referred to in Section 7. This Agreement is enforceable by the Underwriters and
the other third party beneficiaries hereto in all respects to the same extent as
if they had been signatories hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party, or third party beneficiary, against whom such
waiver or modification is sought to be enforced.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
BANK OF AMERICA
By:
----------------------------------
Name:
Title:
Address for Notices:
Bank of America
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:
Telecopier No.:
Telephone No.:
PURCHASER
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By:
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
19
Exhibit A
First Union-Xxxxxx Brothers-Bank of America Commercial Mortgage Trust 1998-C2
Servicing & Pooling
Bank of America Pool
Mortgage
Loan
Number Property Name Address
(i) (ii) (ii)
60 Sundance West Apartments 0000 Xxxxxx Xxx
00 Xxxxxxxxx Xxxxxxx 000 X Xxxxxxx Xxxx
88 Century Village Apartments 4801 Xxxxxxx Street
91 La Villita Apartments 0000 X Xxxxxx
000 Xxxxxxx Xxxxx Xxxxxx Xxxx 0000 Xxxxxxx Xxxxxx Xxxx
000 Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx Xxxx
112 Orangebrook Manor Apartments 0000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxx Villas 0000 Xxxxxxxx Xxxx Xxxxxx
117 Legacy Apartments 0000 Xxxx Xxxxxxxxxx Xxxxxx
118 Valley Breeze Apartments 0000 Xxx Xxxxx Xxxx
000 Xxxxxxxx Apartments 000-000 Xxxxx Xxxxxxx Xxxxxx
160 Park Encino Apartments 0000 Xxxxxxxxx Xxxxxx
165 Forest Xxxx Apartments 0000 Xxxxx Xxxxxx Xxxx
182 Alta Vista Gardens Apartments 0000 Xxxxx Xxxx Xxxxx Xxxx.
183 Kato Road 48835-48881 Kato Road
205 Fairesta Apartments 0000 Xxxxxxxx Xxxxxx
207 Cody's Books 0000 0Xx Xxxxxx
000 Xxxxx Xxx Plaza 000-000 Xxxxx Xxxxxx Xxxx
219 Plaza Codorniz 0000 Xxxxx Xxxxxx Xxxx
221 Villa Creek Apartments 0000 XxXxxxx Xxxx
227 Tarzana Tennis Club Apts. 00000 Xxxxxxxx Xxxxxx
229 L.A. Community College 0000 Xxxxxxxxx Xxxxxxxxx
234 Sunrise Vista 000 Xxxxx Xxx Xxxxx Xxxxx
237 Seagate Facility 0000 Xxxxxx Xxxxx
000 Xxxx Xxxx Center 000 Xxxx Xxxx Xxxxxx
248 Ventana Row 0000 Xxxxxxxx Xxxxxx
000 Xxx Xxxxxxxxx Xxxxxxxxxx 000 Xxxxx Xxx Xxxxxxxxx Ave
267 Windscape II Apartments 0000 Xxxxxx Xxxxx
272 Fairway Center 0000 Xxxxxxxxx Xxxxxx Xxxx
274 Xxxxx Plaza 0000-0000 Xxxxxxx Xxxx Xxxx
300 The Pontiac Building 542 South Dearborn
301 Best Buy Retail Xxxx. 0000 Xxxxx Xxxxxxxxx Xxxxxx
304 Lincoln Arms Apartments 000 X Xxxxxx
000 Xxxxxxxxx Villas Apartments 0000 Xxxxxxxx Xxxxx
309 The Promenade Apartments 0000-0000 Xxxx Xxxxxxxx Xxxxxx
317 Wind & Sea Shopping Center 4140-4150 Capitola Road
325 San Leandro Furniture Center 0000 Xxxxxxxx Xxxxxxxxx
327 Westlake Commerce Center 31121-31131 Xxx Xxxxxxx
000 Xxxxxx & Xxxxx 00000 Xxxxxxxxx Xxxxxx
330 Xxxxxx Medical Buildings 5511, 5531, 5551, & 0000 Xxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxx
337 544 Xxxxxxxx Expressway 000-000 Xxxxxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xx Xxxxxxxxxx Xxxxx 0000 Xxxx Xxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxx Apartments 0000 X Xxxxx Xxxxx
343 000 Xxxxx Xxxxxxx Xxxxxx 000 X Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Avenue
359 Americana Apartments 0000 Xxxx Xxxxxxx Xxxxxx
366 Xxxxxxxxx Club Apartments 0000 X. Xxxxxxxxx Xxxxx
370 Regency Park Apartments 0000 Xxxx Xxxxx Xxxx
372 Three West Xxxxxxx Building 000-000 Xxxxx Xxxxxx
376 Tudor Gardens Apartments 15128-15144 Burbank Blvd
000 Xxxxx Xxxxx Xxxxxxxxx #0 0000-0000 Xxxxxx Drive
397 Peoria Town Center 0000-0000 Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxx 0000-0000 Xxxxxxx Avenue
419 Twin Fountains Apartments 0000 Xxxxx Xxxxx Xxxxxx
434 Capitol Warehouse Building 0000 Xxxxxxxx Xxxx
000 Xxxxx Xxxx Xxxxx Xxxxxxxxxx 000-000 Xxxxx Xxxx Xxxxx
436 6100 Capital Center 0000 Xxxxx Xxxxxxx Xxxx
445 Glenoaks Apartments 0000 Xxxx Xxxxxxxx Xxxx
446 Lucky/Sav-On Center 2006 Avenue K
000 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx
458 Xxxxxxx Apartments 0000 Xxxxxxx Xxxxxx
459 Hidden Park Apartments 00000 Xxxxxxxx Xxxxx
460 Xxxx Apartments 0000 Xxxxx Xxxxx Xxxxxxxxx
Mortgage Monthly Stated
Loan Cut-Off Date Payment Due Mortgage Remaining Maturity
Number City State Zip Balance (on 1st Due Date) Rate Term Date or ARD
(i) (ii) (ii) (ii) (iii) (iv) (v) (vi) (vi)
60 Xxxx XX 00000 10,092,322.04 68,214.00 7.1250 116 01/01/08
86 Xxxxxx XX 00000 7,924,512.91 53,743.19 7.1590 116 01/01/08
88 Xxx Xxxxx XX 00000 7,774,993.83 52,729.16 7.1590 116 01/01/08
91 Xxx Xxxxx XX 00000 7,765,332.63 53,771.69 7.3560 114 11/01/07
101 Xxxxxxxx Xxxxxxx XX 00000 7,096,616.22 51,601.86 7.8630 114 11/01/07
108 Xxx Xxxxx XX 00000 6,943,380.22 47,643.31 7.2630 114 11/01/07
000 Xxxxxx XX 00000 6,838,693.78 45,798.00 7.0510 118 03/01/08
115 Xxx Xxxxx XX 00000 6,732,378.75 45,521.57 7.1350 117 02/01/08
117 Xxxxxxx XX 00000 6,683,917.14 47,431.40 7.6270 117 02/01/08
118 Xxx Xxxxx XX 00000 6,671,562.47 47,173.54 7.5710 114 11/01/07
130 Xxx Xxxxxxx XX 00000 6,458,862.87 43,421.03 7.0710 116 01/01/08
000 Xxxxxx XX 00000 5,727,244.22 38,354.74 7.0510 118 03/01/08
000 Xx Xxxxxx Xxxx XX 00000 5,575,834.45 39,133.01 7.4940 114 11/01/07
182 Xxx Xxxxxxx XX 00000 5,246,083.97 35,532.44 7.1460 116 01/01/08
183 Xxxxxxx XX 00000 5,183,443.80 35,275.87 7.1940 116 01/01/08
205 Xxxxxxxx XX 00000 4,587,970.90 30,991.05 7.1250 117 02/01/08
207 Xxxxxxxx XX 00000 4,493,754.73 30,469.35 7.1750 118 03/01/08
212 Xxxxx Xxx XX 00000 4,482,358.10 30,965.66 7.3460 116 01/01/08
219 Xxxxxxxxxx XX 00000 4,246,854.08 29,754.46 7.5130 119 04/01/08
000 Xxxxx Xxxx XX 00000 4,196,581.00 28,041.50 7.0350 83 04/01/05
000 Xxxxxxx XX 00000 4,150,453.39 27,795.14 7.0510 118 03/01/08
000 Xxxxx Xxxx XX 00000 4,121,706.60 44,695.39 7.2280 135 08/01/09
234 Xxxx XX 00000 4,093,770.79 26,734.40 6.8020 118 03/01/08
237 Xxxxxxxx XX 00000 4,082,680.29 28,929.34 7.5930 114 11/01/07
242 Xxxxxxx XX 00000 3,987,665.78 27,575.23 7.3560 116 01/01/08
248 Xxxxxxxx XX 00000 3,881,505.61 28,345.44 7.3120 80 01/01/05
249 Xxx Xxxxxxx XX 00000 3,836,194.01 26,777.54 7.4460 115 12/01/07
000 Xxxxx Xxxxxxx XX 00000 3,591,189.64 24,081.59 7.0540 117 02/01/08
272 Xxxxxxxx XX 00000 3,547,372.24 24,853.72 7.5130 119 04/01/08
274 Xxx Xxxx XX 00000 3,492,968.16 26,264.41 7.6750 118 03/01/08
300 Xxxxxxx XX 00000 3,289,824.29 22,749.56 7.3560 116 01/01/08
301 Xxxxxxx XX 00000 3,287,692.89 24,078.45 7.3560 117 02/01/08
304 Xxxxxx XX 00000 3,252,040.67 22,054.99 7.1590 116 01/01/08
307 Xxxx XX 00000 3,231,170.58 21,303.98 6.8840 117 02/01/08
309 Xxxxxxx XX 00000 3,208,099.19 22,090.70 7.3070 115 12/01/07
317 Xxxxxxxx XX 00000 3,146,055.81 22,206.73 7.5840 118 03/01/08
325 Xxx Xxxxxxx XX 00000 3,093,291.66 22,472.96 7.2830 118 03/01/08
327 Xxxxxxxx Xxxxxxx XX 00000 3,086,819.64 21,809.54 7.5630 114 11/01/07
329 Xxxxxxx Xxxx XX 00000 3,058,550.65 22,400.26 7.3560 117 02/01/08
330 Xxxxxx XX 00000 3,033,799.44 20,935.68 7.3290 115 12/01/07
000 Xxxxx Xxxx XX 00000 2,997,495.94 19,774.06 6.9080 119 04/01/08
337 Xxxxxxxxx XX 00000 2,996,584.65 22,185.35 7.5080 119 04/01/08
338 Xxxxxxxxxx XX 00000 2,989,267.88 20,888.17 7.4570 115 12/01/07
000 Xxxxxx Xxxxx XX 00000 2,988,062.61 20,383.96 7.2100 115 12/01/07
343 Xxxxxxx XX 00000 2,940,903.52 20,336.73 7.3560 116 01/01/08
350 Xxx Xxxxxxx XX 00000 2,836,527.64 20,172.12 7.6250 113 10/01/07
359 Xxxxxx XX 00000 2,688,048.26 18,648.23 7.3750 114 11/01/07
366 Xxxxxx XX 00000 2,596,257.41 17,343.29 7.0260 118 03/01/08
370 Xxxxxxxx XX 00000 2,587,545.22 18,299.01 7.5670 113 10/01/07
372 Xxxxx Xxxxxxx XX 00000 2,546,696.96 17,744.49 7.4510 118 03/01/08
376 Xxx Xxxxxxx XX 00000 2,538,067.74 17,159.17 7.1130 114 11/01/07
392 Xxxxxx XX 00000 2,396,690.52 16,292.54 7.2010 118 03/01/08
397 Xxxxxx XX 00000 2,388,976.76 17,193.89 7.7500 113 10/01/07
411 Xxxx Xxxxxx XX 00000 2,280,921.21 16,318.43 7.7060 116 01/01/08
419 Xxxxxx XX 00000 2,216,216.51 14,802.98 7.0000 79 12/05/04
000 Xxxxxxx XX 00000 2,156,227.94 22,952.35 7.5010 142 03/01/10
435 Xxxxx XX 00000 2,154,267.86 14,427.15 7.0390 117 02/01/08
436 Xxxxxx XX 00000 2,153,054.25 15,757.56 7.9390 115 12/01/07
445 Xxxxxxxx XX 00000 2,112,568.12 14,282.49 7.1130 114 11/01/07
446 Xxxxxxxxx XX 00000 2,106,979.91 14,339.19 7.1880 115 12/01/07
455 Xxxxxx XX 00000 2,096,775.81 13,631.73 6.7580 118 03/01/08
458 Xxx Xxxx XX 00000 2,093,358.54 14,294.38 7.2280 116 01/01/08
000 Xx Xxxxx XX 00000 2,093,340.17 14,274.46 7.2140 116 01/15/08
000 Xx Xxxxx XX 00000 2,093,340.17 14,274.46 7.2140 116 01/15/08
Remaining ARD
Amortization Additional
Mortgage Term (in Master Additional Interest
Loan the case of Ground Servicing Servicing ARD Rate Accrual Mortgage
Number Balloon loan) Lease Fee(%) Fee (%) Loan (%) Basis Loan Seller CTL
(i) (vii) (viii) (ix) (ix) (x) (x) (xi) (xii) (xiii)
60 356 N 0.0900 0.0050 N - Act/360 Bank of America
86 356 N 0.0900 0.0050 N - Act/360 Bank of America
88 356 N 0.0900 0.0050 N - Act/360 Bank of America
91 354 N 0.0900 0.0050 N - Act/360 Bank of America
101 354 N 0.0900 0.0050 N - Act/360 Bank of America
108 354 N 0.0900 0.0050 N - Act/360 Bank of America
112 358 N 0.0900 0.0050 N - Act/360 Bank of America
115 357 N 0.0900 0.0050 N - Act/360 Bank of America
117 357 N 0.0900 0.0050 N - Act/360 Bank of America
118 354 N 0.0900 0.0050 N - Act/360 Bank of America
130 356 N 0.0900 0.0050 N - Act/360 Bank of America
160 358 N 0.0900 0.0050 N - Act/360 Bank of America
165 354 N 0.0900 0.0050 N - Act/360 Bank of America
182 356 N 0.0900 0.0050 N - Act/360 Bank of America
183 356 N 0.0900 0.0050 N - Act/360 Bank of America
205 357 N 0.0900 0.0050 N - Act/360 Bank of America
207 358 N 0.0900 0.0050 N - Act/360 Bank of America
212 356 N 0.0900 0.0050 N - Act/360 Bank of America
219 359 N 0.0900 0.0050 N - Act/360 Bank of America
221 359 N 0.0900 0.0050 N - Act/360 Bank of America
227 358 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
234 358 N 0.0900 0.0050 N - Act/360 Bank of America
237 354 N 0.0900 0.0050 N - Act/360 Bank of America
242 356 N 0.0900 0.0050 N - Act/360 Bank of America
248 296 N 0.0900 0.0050 N - Act/360 Bank of America
249 355 N 0.0900 0.0050 N - Act/360 Bank of America
267 357 N 0.0900 0.0050 N - 30/360 Bank of America
272 359 N 0.0900 0.0050 N - Act/360 Bank of America
274 298 N 0.0900 0.0050 N - Act/360 Bank of America
300 356 N 0.0900 0.0050 N - Act/360 Bank of America
301 297 N 0.0900 0.0050 N - Act/360 Bank of America
304 356 N 0.0900 0.0050 N - Act/360 Bank of America
307 357 N 0.0900 0.0050 N - Act/360 Bank of America
309 355 N 0.0900 0.0050 N - Act/360 Bank of America
317 358 N 0.0900 0.0050 N - Act/360 Bank of America
325 298 N 0.0900 0.0050 N - Act/360 Bank of America
327 354 N 0.0900 0.0050 N - Act/360 Bank of America
329 297 N 0.0900 0.0050 N - Act/360 Bank of America
330 355 N 0.0900 0.0050 N - Act/360 Bank of America
336 359 N 0.0900 0.0050 N - Act/360 Bank of America
337 299 N 0.0900 0.0050 N - Act/360 Bank of America
338 355 N 0.0900 0.0050 N - Act/360 Bank of America
339 355 N 0.0900 0.0050 N - 30/360 Bank of America
343 356 N 0.0900 0.0050 N - Act/360 Bank of America
350 353 N 0.0900 0.0050 N - Act/360 Bank of America
359 354 N 0.0900 0.0050 N - Act/360 Bank of America
366 358 N 0.0900 0.0050 N - Act/360 Bank of America
370 353 N 0.0900 0.0050 N - Act/360 Bank of America
372 358 N 0.0900 0.0050 N - Act/360 Bank of America
376 354 N 0.0900 0.0050 N - Act/360 Bank of America
392 358 N 0.0900 0.0050 N - Act/360 Bank of America
397 353 N 0.0900 0.0050 N - Act/360 Bank of America
411 356 N 0.0900 0.0050 N - Act/360 Bank of America
419 355 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
435 357 N 0.0900 0.0050 N - Act/360 Bank of America
436 355 N 0.0900 0.0050 N - Act/360 Bank of America
445 354 N 0.0900 0.0050 N - Act/360 Bank of America
446 355 N 0.0900 0.0050 N - Act/360 Bank of America
455 358 N 0.0900 0.0050 N - Act/360 Bank of America
458 356 N 0.0900 0.0050 N - Act/360 Bank of America
459 356 N 0.0900 0.0050 N - Act/360 Bank of America
460 356 N 0.0900 0.0050 N - Act/360 Bank of America
Lease Residual Debt
Mortgage Enhance- Value Service Loan Interest
Loan CTL ment Insurance Coverage to Value Cross Defea- Reserve
Number Guarantor Policy Policy Ratio (x) Ratio Defaulted sance Loan
(i) (xiii) (xiv) (xiv) (xv) (xv) (xvi) (xvii) (xviii)
60 1.57 74.8 No Y Y
86 1.53 74.8 No Y Y
88 1.39 74.8 No Y Y
91 1.33 79.2 No Y Y
101 1.46 74.7 No Y N
108 1.44 73.9 No Y Y
112 1.40 72.1 No Y Y
115 1.31 77.4 No Y Y
117 1.34 74.0 No Y N
118 1.20 76.5 No Y Y
130 1.57 79.7 No Y Y
160 1.34 74.3 No Y Y
165 1.56 78.5 No Y Y
182 1.31 74.9 No Y Y
183 1.62 64.8 No Y Y
205 1.28 79.8 No Y Y
207 1.48 62.9 No Y Y
212 1.36 74.7 No Y Y
219 1.26 72.0 No Y Y
221 1.39 73.6 No Y Y
227 1.42 74.8 No Y Y
229 1.24 73.6 No Y N
234 2.06 46.8 No Y Y
237 1.31 70.8 No Y Y
242 1.54 70.9 No Y Y
248 1.60 58.5 No Y Y
249 1.26 79.9 No Y Y
267 1.53 75.8 No Y N
272 1.29 71.0 No Y Y
274 1.60 53.7 No Y N
300 1.69 70.0 No Y Y
301 1.36 73.1 No Y Y
304 1.56 74.8 No Y Y
307 1.39 74.8 No Y Y
309 1.44 79.7 No Y Y
317 1.30 74.9 No Y Y
325 1.42 60.0 No Y Y
327 1.49 70.2 No Y Y
329 1.29 74.6 No Y Y
330 1.64 74.0 No Y Y
336 1.41 68.1 No Y Y
337 1.50 66.6 No Y Y
338 1.79 59.8 No Y Y
339 1.30 74.7 No Y N
343 1.74 73.5 No Y Y
350 1.21 70.9 No Y N
359 1.40 74.7 No Y Y
366 1.42 79.3 No Y Y
370 1.28 78.7 No Y Y
372 1.27 67.0 No Y Y
376 1.44 74.7 No Y Y
392 1.42 80.2 No Y Y
397 1.54 74.7 No Y N
411 1.49 74.8 No Y N
419 1.66 67.0 No Y Y
434 1.32 74.4 No Y N
435 1.53 79.8 No Y Y
436 1.28 74.9 BA - 1 Y N
445 1.48 74.7 No Y Y
446 1.57 56.3 No Y Y
455 1.53 74.1 No Y Y
458 1.57 74.8 No Y Y
459 1.48 77.5 No Y Y
460 1.49 77.5 No Y Y
B-26
First Union-Xxxxxx Brothers-Bank of America Commercial Mortgage Trust 1998-C2
Servicing & Pooling
Bank of America Pool
Mortgage
Loan
Number Property Name Address
(i) (ii) (ii)
463 Canoga Apartments 00000 Xxxx Xxxxxx Xxxxxx
468 Arrow Press Properties 00-00 Xxxx 000 Xxxxx Xxxxxx
469 Northbrook Apartments 000 Xxxx Xxxxxxx Xxx.
472 Sunnyside Acres Mobile Home Park 000 Xxxx Xxxxxxxxx Xxxx
476 000 X. Xxxxxxx Xxxxxxxxx 000 X Xxxxxxx Xxxxxxxxx
481 Stone Pine Center 00-00 Xxxxx Xxxx Xxxx
484 The Aspens 00000 Xxxxxx Xxxxx Xxxx
485 Casa Del Sol 000-000 Xxxxxx Xxxxx Xxxx.
488 Springwood Village Shopping Xxxxxx 0-00 Xxxx 0000 Xxxxx
000 Xxxxxxx/Xxxxx Xxxxxxxx Xxxxxx 7003-7063 Katella Avenue
510 000 Xxxx Xxxxxx Apartments 000 Xxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxxxxx #0 0000-0000 Xxxxxx Drive
513 Burbank Villas Apartments 00000 Xxxxxxx Xxxx
517 Sunrise Condominiums 000 Xx Xxxxxx Xxxx
520 Inbus Engineering Building 0000 Xxxxxxxxxx Xxx
523 Cedars St. Xxxx Apts. 0000 Xxxxxx Xxxxxx
524 XxXxxxxxxx Office Plaza 0000 X. XxXxxxxxxx Xxxxx
535 Palms Apartments 00000- Xxxxx Xxxx
000 Xxxxx Xxxxxx Xxxxxxxxxx 00000 Xxxxx Xxxxxx
549 Target Center 00000 Xxxxxxxx Xxxx.
560 Spa Business Center 145-155 East 6100 South
569 Duna Vista Mobile Home Park 2400 Cienega
570 Xxxxxxx Apartments 11434-11450 Xxxxxxx Street
571 000 X. Xxxxxx Xxxxxx 000 X. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxx Garage 000 00Xx Xxxxxx
000 Xxxx Xxxxxxxxx Apartments 00000 Xxxxxxxxx Xxxxxx
000 Xxxx Xxxx Professional Center 00000 Xxxxxxxx Xxxxx
585 00000 Xxxxxxxx Xxxxxx 00000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxx 00000 & 20412 Barents Sea Circle
590 Canon Perdido 000 X. Xxxxx Xxxxxxx Xxxxxx
591 Panorama Medical Arts Building 0000 Xxx Xxxx Xxxx
000 Xx Tijera Manor Apartments 0000-0000 Xxxxxx Xxxxxx
599 Applied Companies Xxxxxxxx 00000 Xxxxxx Xxxxxxxxx
000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx 0000 0Xx Xxxxxx Xxxxx
610 Xxxxxxx Business Park 0000 Xxxxx Xxxxxx Xxxxx
613 Ocean Villa Townhomes #3 0000-0000 Xxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx 0000 Xxxx Xxxxx Blvd
620 2715 Xxxxx Xxxxx 0000 Xxxxx Xxxxx
000 Xxxxxxxxx Atrium 0000 Xxxxxxxxx Xxxx
000 Xxxxxx Apartments 0000 Xxxx Xxxxxx Xxxxxx
626 A-Advance Self-Storage 000 Xxxx Xxxxxx Xxxxxx Xxxx
000 Xxxxxxxxxxx Xxxxxx Apartments 0000-0000 Xxxxxxxxxxx Xxxx
638 Westgate Apartments 0000 Xxxxxxxxxx Xxxxxx
639 Broadmoor Apartments 000 X. Xxxxxx Xxxx
641 Xxxxxxx Tell Apartments 000 Xxxx Xxxxx
000 00Xx Xxxxx Self Storage 0000 Xxxxx 000 Xxxx
645 Haverford Apartments 000 Xxxxx Xxxxxxxxx Xxxxxx
654 Northpointe Apartments 0000-0000 Xx. Xxxxxxx Xxxx
656 514 - 000 Xxxxx Xxxx. XX 514 - 000 Xxxxx Xxxxxxxxx, XX
657 0000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxxxxx
000 Xxx Xxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxx X
662 000 Xxxxx Xxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxx
665 0000-0000 X. Xxxx Xxxxxx 0000-0000 X. Xxxx Xxxxxx
668 Villa Apartments 0000 0Xx Xxxxxx Xxxxx
000 Blockbuster Video Store 0000 Xxxxxx Xxxx
676 Branford Apartments 00000 Xxxxxxxx Xxxxxx
Mortgage Monthly Stated
Loan Cut-Off Date Payment Due Mortgage Remaining Maturity
Number City State Zip Balance (on 1st Due Date) Rate Term Date or ARD
(i) (ii) (ii) (ii) (iii) (iv) (v) (vi) (vi)
463 Xxxxxxxxxx XX 00000 2,090,173.44 14,131.08 7.1130 114 11/01/07
468 Xxxx Xxxx Xxxx XX 00000 2,064,387.08 15,187.48 7.9990 116 01/01/08
000 Xxxxxx XX 00000 2,057,124.09 13,914.77 7.1510 118 03/01/08
000 Xxxxx Xxxxx XX 00000 2,022,107.75 13,551.35 7.0580 118 03/01/08
476 Xxxxxxx XX 00000 1,993,832.91 13,787.61 7.3560 116 01/01/08
000 Xxxx Xxxx Xxx XX 00000 1,989,373.41 15,123.65 7.7630 115 12/01/07
484 Xxxxxxx XX 00000 1,947,409.68 13,436.28 7.3510 118 03/01/08
485 Xxxxxxxx Xxxx XX 00000 1,946,082.26 14,633.03 7.6750 118 03/01/08
488 Xxxxxxx XX 00000 1,943,757.63 14,252.71 7.9590 115 12/01/07
506 Xxxxxxx XX 00000 1,888,355.34 17,472.09 7.3690 178 03/01/13
510 Xxx Xxxxxxxxx XX 00000 1,862,440.71 13,456.40 7.7960 114 11/01/07
511 Xxxxxx XX 00000 1,847,448.95 12,558.83 7.2010 118 03/01/08
513 Xxx Xxxxxxx XX 00000 1,824,386.08 12,217.72 7.0510 118 03/01/08
517 Xxxxxxxxxx XX 00000 1,794,157.35 12,091.72 7.0960 116 01/01/08
520 Xxxxxxxxxx XX 00000 1,777,871.31 16,590.22 7.4060 176 01/01/13
000 Xx. Xxxx XX 00000 1,757,481.94 11,769.67 7.0510 118 03/01/08
524 Xxxxx XX 00000 1,748,704.62 12,251.84 7.5130 119 04/01/08
535 Xxx Xxxxxxx XX 00000 1,697,751.38 11,733.37 7.3680 118 03/01/08
543 Xxx Xxxxxxx XX 00000 1,635,711.37 11,048.98 7.1250 117 02/01/08
549 Xxxxxxxxxxx XX 00000 1,596,484.25 11,514.45 7.2010 118 03/01/08
560 Xxxxxx XX 00000 1,545,038.11 11,329.08 7.9590 115 12/01/07
569 Xxxxxx XX 00000 1,486,040.28 13,703.94 7.2630 177 02/01/13
000 Xxxxx Xxxxxxxxx XX 00000 1,470,406.50 10,118.19 7.3060 116 01/01/08
000 Xxxxxxxx Xxxx XX 00000 1,467,025.62 10,995.46 7.6380 118 03/01/08
572 Xxxxxxx XX 00000 1,462,085.02 12,021.78 7.6540 115 12/01/07
574 Xxx Xxxxxxx XX 00000 1,453,916.87 9,736.73 7.0510 118 03/01/08
000 Xxxxxxxxxx XX 00000 1,446,464.48 10,173.38 7.5350 117 02/01/08
585 Xxxxxxxxx XX 00000 1,397,163.99 10,466.38 7.6320 118 03/01/08
586 Xxxx Xxxxxx XX 00000 1,396,259.85 9,314.23 7.0000 81 02/01/05
590 Xxxxx Xxxxxxx XX 00000 1,373,982.61 9,628.33 7.5150 119 04/01/08
591 Xxxxxxxx Xxxx XX 00000 1,365,634.97 10,033.48 7.9800 115 12/01/07
598 Xxx Xxxxxxx XX 00000 1,298,280.46 8,972.58 7.3680 118 03/01/08
000 Xxxxx Xxxxxxx XX 00000 1,297,300.01 9,607.73 7.5010 118 03/01/08
609 Xxxxxxxxxxx XX 00000 1,230,003.85 8,559.29 6.7840 117 02/01/08
610 Xxx Xxxxx XX 00000 1,225,749.60 8,697.40 7.6150 115 12/01/07
613 Xxxxxx XX 00000 1,198,345.26 8,146.27 7.2010 118 03/01/08
618 Xxxx Xxxx Xxxx XX 00000 1,158,791.94 8,509.76 7.9750 115 12/01/07
620 Xxxx Xxxxxx XX 00000 1,147,038.62 7,817.75 7.2150 117 02/01/08
000 Xxxxxxxx Xxxx XX 00000 1,130,478.49 8,220.09 7.8630 114 11/01/07
623 Xxxxxx XX 00000 1,102,685.96 7,459.73 7.1340 116 01/01/08
626 Xxxxxxx XX 00000 1,083,699.73 10,425.36 7.8630 175 12/01/12
000 Xxxxxxx XX 00000 1,044,004.88 7,651.14 7.3410 115 12/01/07
000 Xxxxxx Xxxx XX 00000 997,277.19 6,578.65 6.8890 117 02/01/08
639 Xxxxxx XX 00000 997,248.62 6,537.91 6.8280 117 02/01/08
000 Xxxxxxxx XX 00000 993,266.00 7,389.91 7.5000 114 11/01/07
642 Xxxx Xxxx Xxxx XX 00000 992,949.59 7,718.16 8.0000 113 10/01/07
000 Xxxxxxx Xxxxxxxxx XX 00000 970,329.45 6,862.13 7.5670 113 10/01/07
654 Xxxx Xxxx Xxxx XX 00000 886,820.11 6,118.07 7.3500 118 03/01/08
656 Xxxxxxxxxxx XX 00000 862,793.79 5,836.10 7.1510 118 03/01/08
657 Xxxxxxxx XX 00000 834,233.40 5,904.55 7.6000 117 02/01/08
659 Xxxx XX 00000 817,376.30 5,548.87 7.1690 116 01/01/08
000 Xxxxxxxx XX 00000 773,913.25 5,225.50 7.1330 118 03/01/08
665 Xxxxxxxx XX 00000 758,402.60 5,585.72 7.4380 118 03/01/08
668 Xxxxxxxxxxx XX 00000 737,006.36 5,128.64 6.7840 117 02/01/08
000 Xxxxx XX 00000 695,387.84 5,577.75 8.3750 113 10/01/07
676 Xxxxxx XX 00000 408,723.18 2,812.51 7.3060 116 01/01/08
Remaining ARD
Amortization Additional
Mortgage Term (in Master Additional Interest
Loan the case of Ground Servicing Servicing ARD Rate Accrual Mortgage
Number Balloon loan) Lease Fee(%) Fee (%) Loan (%) Basis Loan Seller CTL
(i) (vii) (viii) (ix) (ix) (x) (x) (xi) (xii) (xiii)
463 354 N 0.0900 0.0050 N - Act/360 Bank of America
468 356 N 0.0900 0.0050 N - Act/360 Bank of America
469 358 N 0.0900 0.0050 N - Act/360 Bank of America
472 358 N 0.0900 0.0050 N - Act/360 Bank of America
476 356 N 0.0900 0.0050 N - Act/360 Bank of America
481 295 N 0.0900 0.0050 N - Act/360 Bank of America
484 358 N 0.0900 0.0050 N - Act/360 Bank of America
485 298 N 0.0900 0.0050 N - Act/360 Bank of America
488 355 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
510 354 N 0.0900 0.0050 N - Act/360 Bank of America
511 358 N 0.0900 0.0050 N - Act/360 Bank of America
513 358 N 0.0900 0.0050 N - Act/360 Bank of America
517 356 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
523 358 N 0.0900 0.0050 N - Act/360 Bank of America
524 359 N 0.0900 0.0050 N - Act/360 Bank of America
535 358 N 0.0900 0.0050 N - Act/360 Bank of America
543 357 N 0.0900 0.0050 N - Act/360 Bank of America
549 298 N 0.0900 0.0050 N - Act/360 Bank of America
560 355 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
570 356 N 0.0900 0.0050 N - Act/360 Bank of America
571 298 N 0.0900 0.0050 N - Act/360 Bank of America
572 235 N 0.0900 0.0050 N - Act/360 Bank of America
574 358 N 0.0900 0.0050 N - Act/360 Bank of America
575 357 N 0.0900 0.0050 N - Act/360 Bank of America
585 298 N 0.0900 0.0050 N - Act/360 Bank of America
586 357 N 0.0900 0.0050 N - Act/360 Bank of America
590 359 N 0.0900 0.0050 N - Act/360 Bank of America
591 355 N 0.0900 0.0050 N - Act/360 Bank of America
598 358 N 0.0900 0.0050 N - Act/360 Bank of America
599 298 N 0.0900 0.0050 N - Act/360 Bank of America
609 297 N 0.0900 0.0050 N - Act/360 Bank of America
610 355 N 0.0900 0.0050 N - Act/360 Bank of America
613 358 N 0.0900 0.0050 N - Act/360 Bank of America
618 355 N 0.0900 0.0050 N - Act/360 Bank of America
620 357 N 0.0900 0.0050 N - Act/360 Bank of America
621 354 N 0.0900 0.0050 N - Act/360 Bank of America
623 356 N 0.0900 0.0050 N - Act/360 Bank of America
000 X 0.0000 0.0000 X - 00/000 Xxxx xx Xxxxxxx
633 295 N 0.0900 0.0050 N - Act/360 Bank of America
638 357 N 0.0900 0.0050 N - Act/360 Bank of America
639 357 N 0.0900 0.0050 N - Act/360 Bank of America
641 294 N 0.0900 0.0050 N - Act/360 Bank of America
642 293 N 0.0900 0.0050 N - Act/360 Bank of America
645 353 N 0.0900 0.0050 N - Act/360 Bank of America
654 358 N 0.0900 0.0050 N - Act/360 Bank of America
656 358 N 0.0900 0.0050 N - Act/360 Bank of America
657 357 N 0.0900 0.0050 N - Act/360 Bank of America
659 356 N 0.0900 0.0050 N - Act/360 Bank of America
662 358 N 0.0900 0.0050 N - Act/360 Bank of America
665 298 N 0.0900 0.0050 N - Act/360 Bank of America
668 297 N 0.0900 0.0050 N - Act/360 Bank of America
670 293 N 0.0900 0.0050 N - Act/360 Bank of America
676 356 N 0.0900 0.0050 N - Act/360 Bank of America
Lease Residual Debt
Mortgage Enhance- Value Service Loan Interest
Loan CTL ment Insurance Coverage to Value Cross Defea- Reserve
Number Guarantor Policy Policy Ratio (x) Ratio Defaulted sance Loan
(i) (xiii) (xiv) (xiv) (xv) (xv) (xvi) (xvii) (xviii)
463 1.43 74.9 No Y Y
468 1.11 75.1 BA - 1 Y N
469 1.34 69.0 No Y Y
472 1.31 74.9 No Y Y
476 1.54 68.8 No Y Y
481 1.51 69.8 No Y N
484 1.25 77.0 No Y Y
485 1.57 56.4 No Y N
488 1.30 74.8 BA - 1 Y N
506 1.45 53.7 No Y N
510 1.20 70.0 No Y N
511 1.40 80.3 No Y Y
513 1.34 73.0 No Y Y
517 1.30 64.7 No Y Y
520 1.38 53.2 No Y N
523 1.51 78.1 No Y Y
524 1.34 74.4 No Y Y
535 1.34 74.8 No Y Y
543 1.28 79.8 No Y Y
549 1.56 74.6 No Y Y
560 1.33 74.5 BA - 1 Y N
569 1.14 55.0 No Y N
570 1.50 79.9 No Y Y
571 1.53 69.9 No Y N
572 1.42 75.0 No Y N
574 1.54 56.6 No Y Y
575 1.48 72.3 No Y Y
585 1.38 65.0 No Y N
586 1.36 72.1 No Y Y
590 1.29 65.4 No Y Y
591 1.36 78.0 No Y N
598 1.45 74.2 No Y Y
599 1.65 59.5 No Y Y
609 1.55 76.9 No Y Y
610 1.34 75.9 No Y N
613 1.47 76.8 No Y Y
618 1.31 74.8 BA - 1 Y N
620 1.38 54.6 No Y Y
621 1.44 70.7 No Y N
623 1.38 77.1 No Y Y
626 1.38 63.8 No Y N
633 1.45 74.6 No Y Y
638 1.70 64.8 No Y Y
639 1.58 66.5 No Y Y
641 1.42 66.2 No Y Y
642 1.46 59.5 No Y N
645 1.19 65.6 No Y Y
654 1.38 79.9 No Y Y
656 1.31 79.9 No Y Y
657 1.42 74.8 No Y N
659 1.47 76.4 No Y Y
662 1.26 77.4 No Y Y
665 1.74 55.8 No Y Y
668 1.39 69.9 No Y Y
670 1.32 63.2 No Y N
676 1.42 80.1 No Y Y
B-27
SCHEDULE I
General Mortgage Representations and Warranties
(i) The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects as of
the Cut-Off Date;
(ii) If such Mortgage Loan was originated by the Seller or an
affiliate thereof, then, as of the date of its origination, such Mortgage Loan
complied in all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage Loan;
and, if such Mortgage Loan was not originated by the Seller or an affiliate
thereof, then, to the best of the Seller's knowledge after having performed the
type of due diligence customarily performed by prudent institutional commercial
and multifamily mortgage lenders, as of the date of its origination, such
Mortgage Loan complied in all material respects with, or was exempt from, all
requirements of federal, state or local law relating to the origination of such
Mortgage Loan;
(iii) The Seller owns the Mortgage Loan, has good and marketable
title thereto, has full right and authority to sell, assign and transfer the
Mortgage Loan and is transferring the Mortgage Loan free and clear of any and
all liens, pledges, charges or security interests of any nature encumbering such
Mortgage Loan, and no provision of the Mortgage Note, Mortgage or other loan
document relating to such Mortgage Loan prohibits or restricts the Seller's
right to assign or transfer such Mortgage Loan;
(iv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder;
(v) Each of the related Mortgage Note, Mortgage(s), Assignment of
Leases, if any, and other agreements executed in connection therewith is the
legal, valid and binding obligation of the maker thereof (subject to any
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(vi) As of the date of its origination, there was no valid offset,
defense, counterclaim or right to rescission with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection therewith,
and, as of the
Cut-off Date, to the best knowledge of the Seller, there is no valid offset,
defense, counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements;
(vii) The assignment of the related Mortgage and Assignment of
Leases to the Trustee constitutes the legal, valid, binding and enforceable
assignment of such Mortgage in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(viii) Except with respect to the Mortgage Loans listed in Exhibit
I-VIII hereto, each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property, which Mortgaged Property is free and clear of
all encumbrances and liens having priority over or on a parity with the first
lien of such Mortgage, except for (a) liens for real estate taxes and special
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
customarily acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal of such Mortgaged Property made in
connection with the origination of such Mortgage Loan, and (c) other matters to
which like properties are commonly subject and which do not, individually or in
the aggregate, materially interfere with the benefits of the security intended
to be provided by such Mortgage or materially affect the value or marketability
of such Mortgaged Property, and such encumbrances do not materially interfere
with the current use or operation of the related Mortgaged Property and, except
with respect to the Mortgage Loans listed in Exhibit I-VIII hereto, there exists
with respect to such Mortgaged Property an assignment of leases and rents
provision, whether as part of the related Mortgage or as a separate document or
instrument, which establishes and creates a first priority security interest in
and to leases and rents arising in respect of the related Mortgaged Property,
subject only to encumbrances described in subsections (a), (b) and (c) of this
subparagraph (viii);
(ix) The Seller has filed and/or recorded in all appropriate public
filing and recording offices all UCC-1 financing statements necessary to create
and perfect a security interest in and lien on the items of personal property
described therein (or, if not filed and/or recorded, has submitted such UCC-1
financing statements for filing and/or recording and such UCC-1 financing
statements are in form and substance acceptable for filing and/or recording), to
the extent perfection may be effected pursuant to applicable law by recording or
filing;
-2-
(x) All taxes and governmental assessments that prior to the Cut-off
Date became due and owing in respect of, and affect, each related Mortgaged
Property have been paid, or an escrow of funds in an amount sufficient to cover
such payments has been established;
(xi) As of the date of its origination, there was no proceeding
pending for the total or partial condemnation of each related Mortgaged Property
that materially affects the value thereof, and such Mortgaged Property was free
of material damage; and, as of the Cut-off Date, the Seller has not received any
notice of the commencement of any proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects the value
thereof, and such Mortgaged Property is free of material damage;
(xii) Each related Mortgaged Property is covered by an ALTA (or its
equivalent) lender's title insurance policy insuring that each related Mortgage
is a valid first lien on such Mortgaged Property in the original principal
amount of the Mortgage Loan after all advances of principal, or there is a
binding commitment from a title insurer qualified and licensed in the applicable
jurisdiction, as required, to issue such policy; such title insurance policy, if
issued, is in full force and effect, is freely assignable and will inure solely
to the benefit of the Trustee as mortgagee of record, or any such commitment is
a legal, valid and binding obligation of such insurer; no claims have been made
under such title insurance policy, if issued; and to the best knowledge of the
Seller, no prior mortgagee has done, by act or omission, anything which would
materially impair the coverage of any such title insurance policy;
(xiii) As of the date of its origination, all insurance required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property in the jurisdiction in which such Mortgaged Property is
located, and with respect to a fire and extended perils insurance policy, was in
an amount (subject to a customary deductible) at least equal to 100% of the full
insurable replacement cost of the improvements located on such Mortgaged
Property (except to the extent not permitted by applicable law and then in such
event in an amount in excess of the initial principal balance of the Mortgage
Loan, together with an "agreed value endorsement"), was in full force and effect
with respect to each related Mortgaged Property; and, as of the Cut-off Date, to
the best knowledge of the Seller, all insurance required under each Mortgage,
which insurance covers such risks and is in such amounts as are customarily
acceptable to prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged Property
in the jurisdiction in which such Mortgaged Property is located, is in full
force and effect with respect to each related Mortgaged Property; and no
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notice of termination or cancellation with respect to any such insurance policy
has been received by the Seller; except for certain amounts not greater than
amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are set forth
in the related Mortgage, any insurance proceeds in respect of a casualty loss or
taking, will be applied either to the repair or restoration of all or part of
the related Mortgaged Property or the reduction of the outstanding principal
balance of the Mortgage Loan;
(xiv) Other than payments due but not yet 30 days or more
delinquent, there is, to the best of the Seller's knowledge, (A) no material
default, breach, violation or event of acceleration existing under the related
Mortgage Note or each related Mortgage, and no event which, with the passage of
time or with notice and (B) the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration under
any of such documents; the Seller has not waived any other material default,
breach, violation or event of acceleration under any of such documents; and
under the terms of each Mortgage Loan, each related Mortgage Note, each related
Mortgage and the other loan documents in the related Mortgage File, no person or
party other than the mortgagee may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan, Mortgage Note or Mortgage;
(xv) As of the Cut-off Date, the Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past due in
respect of any Scheduled Payment;
(xvi) Except with respect to the Mortgage Loans listed in Exhibit
I-XVI hereto which accrue interest on the basis of the actual number of days
elapsed over a 360 day year, the Mortgage Loan accrues interest (payable monthly
in arrears) at a fixed rate of interest (except with respect to ARD Loans, with
respect to which the rate at which interest accrues thereon increases after the
Anticipated Repayment Date, except with respect to the Mortgage Loans listed in
Exhibit I-XVI hereto and except in connection with the occurrence of a default
and the accrual of default interest) on the basis of a 360-day year consisting
of twelve 30-day months;
(xvii) Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation, except as
expressly described in such Mortgage and other than another Mortgage Loan in the
Trust Fund;
(xviii) Such Mortgage Loan is or constitutes part of a "qualified
mortgage" within the meaning of Section
-4-
860G(a)(3) of the Code. Accordingly, either as of the date of origination or the
Closing Date, the fair market value of the real property securing the Mortgage
Loan was not less than 80% of the "adjusted issue price" (within the meaning of
the REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing the Mortgage Loan
was first reduced by the amount of any lien on such real property that is senior
to the lien that secures such Mortgage Loan, and was further reduced by a
proportionate amount of any lien that is on a parity with the lien that secures
such Mortgage Loan;
(xix) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section 1.860G-1(b)(2);
(xx) One or more environmental site assessments were performed by an
environmental consulting firm independent of the Seller and the Seller's
affiliates with respect to each related Mortgaged Property during the 18-month
period preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no knowledge of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property that
was not disclosed in such report(s);
(xxi) The related Mortgage Note, Mortgage(s) and Assignment(s) of
Leases, if any, contain customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the related Mortgaged Property or Properties of the benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure, subject to applicable reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time to time,
in effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xxii) To the best of the Seller's knowledge, after due inquiry, the
related Mortgagor is not a debtor in any bankruptcy, reorganization, insolvency
or comparable proceeding;
(xxiii) Such Mortgage Loan is secured by either a mortgage on a fee
simple interest or a leasehold estate in a commercial property or multifamily
property, including the related Mortgagor's interest in the improvements on the
related Mortgaged Property;
(xxiv) Unless such Mortgage Loan is an ARD Loan, such Mortgage Loan
does not provide for negative amortization;
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(xxv) Such Mortgage Loan is a whole loan, contains no equity
participation by the lender or shared appreciation feature and does not provide
for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property;
(xxvi) The related Mortgage contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if, without
the prior written consent of the mortgagee, any related Mortgaged Property or
interest therein, is directly or indirectly encumbered in connection with
subordinate financing; provided, however, the Mortgage Loans listed in Exhibit
I-XXVI hereto, are encumbered by subordinated debt;
(xxvii) Except with respect to (W) transfers of certain
non-controlling interests in the Mortgagors as specified in the related
Mortgage, (X) the Mortgage Loans listed in Exhibit I-XXVII hereto, which permit
one or more transfers of the related Mortgaged Property to a person that
satisfies certain criteria (including criteria related to bankruptcy remoteness
and property management experience) specified in the related Mortgage, (Y) the
Mortgage Loans listed in Exhibit I-XXVII hereto, which permit a one-time
transfer of the Mortgaged Property, subject to payment of an assumption fee and
certain other conditions, and (Z) the Mortgage Loans listed in Exhibit I-XXVII
hereto, which permit two or more separate transfers of the related Mortgaged
Property, subject to payment of an assumption fee and certain other conditions,
the related Mortgage contains either (A) provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if any related
Mortgaged Property or interest therein is directly or indirectly transferred or
sold without the prior written consent of the mortgagee, or (B) provisions for
the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if any related Mortgaged Property or interest therein is directly or
indirectly transferred or sold without the related Mortgagor having satisfied
certain conditions specified in the related Mortgage with respect to permitted
transfers;
(xxviii) The Mortgage Loan, together with any other Mortgage Loan
made to the same Mortgagor or to an affiliate of such Mortgagor, does not
represent more than 5% of the aggregate Initial Pool Balance;
(xxix) Except as set forth in the related Mortgage File, the terms
of the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by such
Mortgage;
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(xxx) Each related Mortgaged Property was inspected by or on behalf
of the related originator during the 12 month period prior to the related
origination date;
(xxxi) Except for the Mortgage Loans listed in Exhibit I-XXXI
hereto, the terms of the related Mortgage Note or Mortgage do not provide for
the release of any material portion of the related Mortgaged Property from the
lien of such Mortgage without payment in full of the Mortgage Loan;
(xxxii) The related Mortgagor has covenanted in the Mortgage Loan
documents to maintain the related Mortgaged Property in compliance with all
applicable laws, zoning ordinances, rules, covenants and restrictions affecting
the construction, occupancy, use and operation of such Mortgaged Property, and
the related originator performed the type of due diligence in connection with
the origination of such Mortgage Loan customarily performed by prudent
institutional commercial and multifamily mortgage lenders with respect to the
foregoing matters; the Seller has received no notice of any material violation
of any applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of such Mortgaged
Property; to the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of such Mortgage Loan), as of the
date of such origination, no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the time of
origination of such Mortgage Loan lay outside the boundaries and building
restriction lines of such property to an extent which would have a material
adverse affect on the related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by the title insurance referred to in
paragraph (xii) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent;
(xxxiii) Except with respect to Credit Lease Loans, the related
Mortgagor has covenanted in the Mortgage Loan documents to deliver each year to
the mortgagee an operating statement of each related Mortgaged Property covering
the twelve-month period identified therein;
(xxxiv) With respect to at least 95% of the Mortgage Loans (by
balance) having a Cut-off Date Balance in excess of 1% of the Initial Pool
Balance, the related Mortgagor has covenanted in its organizational documents
and/or the Mortgage Loan documents to own no significant asset other than the
related Mortgaged Property or Mortgaged Properties, as applicable, and assets
incidental to its ownership and operation of such Mortgaged Property;
(xxxv) No advance of funds has been made, directly or indirectly, by
the Seller to the Mortgagor other than pursuant to the Mortgage Note and no
funds have been received
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from any person other than such Mortgagor for or on account of payments due on
the Mortgage Note;
(xxxvi) To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor 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 or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan;
(xxxvii) Such Mortgage Loan complied with all applicable usury laws
in effect at its date of origination;
(xxxviii) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at all
times when it held the Mortgage Loan to the extent necessary to ensure the
enforceability of such Mortgage Loan;
(xxxix) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, is properly designated and
serving under such Mortgage;
(xl) The related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund (except with respect to
the Mortgage Loans listed in Exhibit I-XL hereto), and each Mortgage Loan that
is cross-collateralized is cross-collateralized only with other Mortgage Loans
sold pursuant to this Agreement;
(xli) The related Mortgaged Property either is not located in a
flood hazard area as defined by the Federal Insurance Administration or is
covered by flood hazard insurance;
(xlii) Except with respect to the Mortgage Loans listed on Exhibit
I-XLII hereto, one or more engineering assessments were performed by an
engineering consulting firm independent of the Seller and the Seller's
affiliates with respect to each related Mortgaged Property during the 18-month
period preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no knowledge of any material and adverse
engineering condition or circumstance affecting such Mortgaged Property that was
not disclosed in such report(s);
(xliii) All escrow deposits and payments relating to the Mortgage
Loan are under control of the Seller or the servicer of such Mortgage Loan and
all amounts required as of the date hereof under the Mortgage Loan Documents to
be deposited by the related Mortgagor have been deposited;
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(xliv) The related Mortgagor has represented to the Seller that as
of the date of origination of the Mortgage Loan, such Mortgagor, the related
lessee, franchisor or operator was in possession of all licenses, permits and
authorizations then required for use of the related Mortgaged Property, which
were valid and in full force and effect; and
(xlv) The origination, servicing and collection practices used by
the Seller or any prior holder of the Mortgage Note have been in all respects
legal and have met customary industry standards.
(xlvi) Except as set forth in Schedule II, the Mortgage Loan is
secured in whole or in part by a fee simple interest.
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SCHEDULE II
Ground Lease Representations and Warranties
(i) With respect to any Mortgage Loan that is secured in whole or in
material part by the interest of a Mortgagor as a lessee under a Ground Lease
but not by the related fee interest:
(A) Such Ground Lease or a memorandum thereof has been or will be duly
recorded (other than the Ground Lease related to the Mortgage Loan listed
in Exhibit II-A hereto) and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage or, if consent
of the lessor thereunder is required, it has been obtained prior to the
Closing Date;
(B) Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such Ground Lease is assignable
to the Trustee without the consent of the lessor thereunder (or, if any
such consent is required, it has been obtained prior to the Closing Date)
and, in the event that it is so assigned, is further assignable by the
Trustee and its successors without a need to obtain the consent of such
lessor; provided, that the lessor's consent to a subsequent sale is
required under the Ground Lease related to the Mortgage Loans listed in
Exhibit II-B hereto;
(C) Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the Mortgagee thereunder and that any
such action without such consent is not binding on such Mortgagee, its
successors or assigns;
(D) Unless otherwise set forth in the Ground Lease, the Ground Lease does
not permit any increase in the amount of rent payable by the ground lessee
thereunder during the term of the Mortgage Loan;
(E) Such Ground Lease was in full force and effect as of the date of
origination of the related Mortgage Loan, and to the actual knowledge of
the Seller, at the Closing Date, such Ground Lease is in full force and
effect and other than payments due but not yet 30 days or more delinquent,
(1) there is no material default, and (2) there is no event which, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default under such Ground Lease;
(F) Such Ground Lease or an estoppel or consent letter received by the
Mortgagee from the lessor, requires the lessor thereunder to give notice
of any default by the lessee to the Mortgagee; and such Ground Lease, or
an
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estoppel or consent letter received by the Mortgagee from the lessor,
further provides either (1) that no notice of termination given under such
Ground Lease is effective against the Mortgagee unless a copy has been
delivered to the Mortgagee in the manner described in such Ground Lease,
estoppel or consent letter or (2) that upon any termination of the Ground
Lease the lessor will enter into a new lease with the mortgagee;
(G) The ground lessee's interest in the Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related ground lessor's related fee interest and
any exceptions stated in the related title insurance policy or opinion of
title, which exceptions do not and will not materially and adversely
interfere with (1) the ability of the related Mortgagor timely to pay in
full the principal and interest on the related Mortgage Note, (2) the use
of such Mortgaged Property for the use currently being made thereof, or
(3) the value of the Mortgaged Property;
(H) A Mortgagee is permitted a reasonable opportunity to cure any curable
default under such Ground Lease before the lessor thereunder may terminate
such Ground Lease;
(I) Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein) that
extends not less than 10 years beyond the Stated Maturity Date of the
related Mortgage Loan;
(J) Except with respect to the Ground Lease related to each of the
Mortgage Loans listed in Exhibit II-J hereto, under the terms of such
Ground Lease, any estoppel or consent letter received by the Mortgagee
from the lessor, and the related Mortgage, taken together, any related
insurance proceeds or condemnation proceeds will be applied either to the
repair or restoration of all or part of the related Mortgaged Property,
with the Mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses, or to
the payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(K) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender;
(L) Except with respect to Mortgage Loans listed on Exhibit II-L hereto,
the ground lessor under such Ground Lease is required to enter into a new
lease upon termination of the Ground Lease for any reason, including the
rejection of the Ground Lease in bankruptcy, and for any reason, upon the
request of the lender; and
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(M) The terms of the related Ground Lease have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
(ii) With respect to Mortgage Loans secured in whole or
in part by the interest of the related mortgagor under a Ground Lease and by the
related fee interest, such fee interest is subject, and subordinated of record,
to the related Mortgage, and such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or other lien upon such
fee interest.
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SCHEDULE III
Health Care Facility Representations and Warranties
With respect to any Mortgage Loan that is secured in whole or in
part by a Mortgage Property which is operated as a residential health care
facility (a "Facility");
(A) All governmental licenses, permits, regulatory agreements or other
approvals or agreements necessary for the use and operation of each
Facility as intended are held by the related Mortgagor or the operator of
the Facility, and are in full force and effect, including, without
limitation, a valid certificate of need ("CON") or similar certificate,
license, or approval issued by the applicable department of health for the
requisite number of beds, and approved provider status in any approved
provider payment program (collectively, the "Licenses").
(B) The Licenses (1) may not be, and have not been, transferred to any
location other than the Facility; (2) have not been pledged as collateral
security for any other loan or indebtedness; and (3) are held free from
restrictions or known conflicts which would materially impair the use or
operation of the Facility as intended, and are not provisional,
probationary or restricted in any way.
(C) As of the Cut-off Date and to Seller's knowledge, without inquiry, (1)
as of the Cut-off Date, the Facility has not received a "Level A" (or
equivalent) violation which has not been cured to the satisfaction of the
applicable governmental agency, and (2) no statement of charges or
deficiencies has been made or penalty enforcement action has been
undertaken against the Facility, its operator or the Mortgagor or against
any officer, director or stockholder of such operator or the Mortgagor by
any governmental agency during the last three calendar years, and there
have been no violations over the past three years which have threatened
the Facility's, the operator's or the Mortgagor's certification for
participation in Medicare or Medicaid or the other third-party payors'
programs.
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[Schedule IV Reserved]
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Schedule V
Gentlemen:
I have acted as counsel to [SELLER]. First Union Commercial Mortgage
Securities, Inc. will acquire certain mortgage loans from [seller] pursuant to
the Mortgage Loan Purchase Agreement, dated as of [ ] (the "Mortgage Loan
Purchase Agreement"). Capitalized terms used but not defined herein shall have
the meanings set forth in the Mortgage Loan Purchase Agreement.
You have asked for my opinion regarding the due authorization of
[Seller] to enter into the Mortgage Loan Purchase Agreement.
As to matters of fact material to this opinion, I have relied,
without independent investigation on (i) the representations and warranties of
[SELLER] in the Mortgage Loan Purchase Agreement, (ii) relevant resolutions of
the Board of Directors of [SELLER], (iii) certificates of responsible officers
of [SELLER] and (iv) certificates of public officials.
In this connection, I have examined or have caused to be examined on
my behalf, a copy of the Mortgage Loan Purchase Agreement and such other
documents and instruments which I have deemed necessary or appropriate in
connection with this opinion.
I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of [SELLER], records of proceedings taken by [SELLER], and such other corporate
documents and records of [SELLER], and have made such other investigations as I
have deemed relevant or necessary for the purpose of this opinion. I have
assumed, without independent investigation, the genuineness of all signatures
(other than those of officers of [SELLER]), the authenticity of all documents
submitted to me as originals and the conformity to original documents of all
documents submitted to me as certified, conformed or reproduction copies.
On the basis of and subject to the foregoing, it is my opinion that:
(1) [SELLER] is a [corporation] duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, with the corporate
power and authority to transact the business contemplated by the Mortgage Loan
Purchase Agreement, and it has the requisite corporate power and authority to.
execute and deliver the Mortgage Loan Purchase Agreement and to perform and
observe the terms and conditions thereof.
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(2) The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by [SELLER].
(3) The execution, delivery and performance by [SELLER] of the
Mortgage Loan Purchase Agreement will not conflict with, result in a breach of,
or constitute a default under any material term of [SELLER]'s certificate of
incorporation or bylaws, any term or provision of any material contract,
agreement or other instrument known to me to which [SELLER] is a party or by
which it is bound, or, to the best of my knowledge without independent
investigation, any order, judgment, writ, injunction or decree known to me of
any court or governmental authority having jurisdiction over [SELLER].
(4) The Mortgage Loan Purchase Agreement constitutes, assuming due
authorization, execution and delivery by the other party thereto, the valid and
binding obligation of [SELLER] enforceable against [SELLER] in accordance with
its terms, except as such enforcement may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally, (b) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
(c) limitations of public policy under applicable securities laws as to rights
of indemnity thereunder.
In furnishing the foregoing opinions, I express no opinion other
than as to the general corporation law of the State of Delaware, the law of the
State of New York and the federal law of the United States of America.
This opinion is being delivered to you for your sole use in
connection with the above-referenced transactions and may not be used or relied
upon by any other person, firm or entity in any other context for any other
purpose. This opinion may not be quoted in whole or in part, nor may copies be
furnished or delivered to any other person without the consent of [SELLER]
except that you may furnish copies to (i) your independent auditors ands
attorneys, (ii) any United States, state or local authority having jurisdiction
over you, (iii) pursuant to the order of any legal process of any court of
competent jurisdiction or governmental agency, and (iv) in connection with any
legal action arising in connection with the above-referenced transactions.
Very truly yours,
-16-
EXHIBIT B
Exception to Section 2(c)
None
EXHIBIT I-VIII
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (v)
(v) Each of the related Mortgage Note, Mortgage(s), Assignment of Leases, if
any, and other agreements executed in connection therewith is the legal,
valid and binding obligation of the maker thereof (subject to any
non-recourse provisions therein and any state anti- deficiency
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
a legal opinion to such effect was obtained by the originator of such
Mortgage Loan at the time of origination;
1. The following Mortgage Loans are the only loans where a legal
opinion was obtained by the originator at the time of origination:
(a) 434 -- Capitol Warehouse Building
(b) 60 -- Sundance West Apartments
(c) 436 -- 6100 Capital Center
(d) 242 -- Lake Loft Center
(e) 300 -- The Pontiac Building
(f) 304 -- Lincoln Arms Apartments
(g) 618 -- Brookhill Plaza
(h) 91 -- La Villita Apartments
(i) 654 -- Northpointe Apartments
EXHIBIT I-IX
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (ix)
(ix) The Seller has filed and/or recorded in all appropriate public filing and
recording offices all UCC-1 financing statements necessary to create and
perfect a security interest in and lien on the items of personal property
described therein (or, if not filed and/or recorded, has submitted such
UCC-1 financing statements for filing and/or recording and such UCC-1
financing statements are in form and substance acceptable for filing
and/or recording), to the extent perfection may be effected pursuant to
applicable law by recording or filing;
The following are missing UCC-1 filings:
(a) 654-- Northpointe Apartments.
EXHIBIT I-XIII
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xiii)
(xiii) As of the date of its origination, all insurance required under each
related Mortgage, which insurance covered such risks as were customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, was in an amount (subject to a customary deductible) at
least equal to 100% of the full insurable replacement cost of the
improvements located on such Mortgaged property, was in full force and
effect with respect to each related Mortgaged Property; and, as of the
Cut-off Date, to the best knowledge of the Seller, all insurance required
under each Mortgage, which insurance covers such risks and is in such
amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, is in full force and effect
with respect to each related Mortgaged Property; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller; except for certain amounts not greater than
amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in respect of a
casualty loss or taking, will be applied either to the repair or
restoration of all or part of the related Mortgaged Property or the
reduction of the outstanding principal balance of the Mortgage Loan;
(a) 229 -- L.A. Community College: business interruption coverage
waived by Seller.
(b) The following loans have PML or BML greater than 25% and Seller
waived earthquake insurance:
112 -- Orangebrook Manor Apartments
160 -- Park Encino Apartments
227 -- Tarzana Tennis Club Apartments
513 -- Burbank Villas Apartments
662 -- 000 Xxxxx Xxxxxx Xxxxxx
EXHIBIT I-XIV
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xiv)
(xiv) Other than payments due but not yet 30 days or more delinquent, (A) there
is no material default, breach, violation or event of acceleration, and
there is no other material default, breach, violation or event of
acceleration, existing under the related Mortgage Note or each related
Mortgage, and (B) to the best of Seller's knowledge, after due inquiry,
there is no event which, with the passage of time or constitute a
material default, breach, violation or event of acceleration under any of
the documents referred to in clause (A), and, to the knowledge of Seller,
there is no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute any other
material default, breach, violation or event of acceleration under any of
the documents referred to in clause (A); the Seller has not waived any
material default, breach, violation or event of acceleration under any of
the documents referred to in clause (A), and the Seller has not waived
any other material default, breach, violation or event of acceleration
under such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other loan documents
in the related Mortgage File, no person or party other than the mortgagee
may declare an event of default or accelerate the related indebtedness
under such Mortgage Loan, Mortgage Note or Mortgage;
(a) 468 --Arrow Press Properties: capital repairs in the amount of
$85,938 were due February 28, 1998; -- past due;
(b) 618 -- Brookhill Plaza: capital repairs in the amount of $55,000
were to be completed by February 28, 1998; -- past due.
EXHIBIT I-XVI
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xvi)
(xvi) Except with respect to the Mortgage Loans listed below which accrue
interest on the basis of a 360-day year consisting of twelve 30-day
months, the Mortgage Loans accrue interest (payable monthly in arrears)
at a fixed rate of interest on the basis of the actual number of days
elapsed over a 360 day year;
(a) 434 -- Capital Warehouse Building;
(b) 520 -- Inbus Engineering Building;
(c) 229 -- L.A. Community College;
(d) 267 -- Windscape II Apartments;
(e) 339 -- Mountain Vista Apartments;
(f) 569 -- Duna Vista Mobile Home Park;
(g) 506 -- Katella/Xxxxx Shopping Center;
(h) 626 -- A-Advance Self-Storage.
EXHIBIT I-XXVII
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxvii)
(xxvii) Except with respect to (W) transfers of certain non-controlling
interests in the Mortgagors as specified in the related Mortgage, (X)
the Mortgage Loans listed in Exhibit I-XXVII hereto, which permit one or
more transfers of the related Mortgaged Property to a person that
satisfies certain criteria (including criteria related to bankruptcy
remoteness and property management experience) specified in the related
Mortgage, (Y) the Mortgage Loans listed in paragraph 1 below, which
permit a one-time transfer of the Mortgaged Property, subject to payment
of an assumption fee and certain other conditions, and (Z) the Mortgage
Loans listed in paragraph 2 below, which permit two or more separate
transfers of the related Mortgaged Property, subject to payment of an
assumption fee and certain other conditions, the related Mortgage
contains either (A) provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if each related
Mortgaged Property, or any interest therein, is directly or indirectly
transferred or sold without the prior written consent of the mortgagee,
or (B) provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if each related Mortgaged
Property, or any interest therein, is directly or indirectly transferred
or sold without the related Mortgagor having satisfied certain
conditions specified in the related Mortgage with respect to permitted
transfers;
1. One-Time Transfers: all of the Mortgage Loans, except for the
Mortgage Loans listed in paragraph 2 below;
2. Two-Time Transfers:
(a) 543 -- Xxxxx Street Apartments;
(b) 613 -- Ocean Villa Townhomes #3;
(c) 511 -- Ocean Villa Townhomes #1;
(d) 662 -- 000 Xxxxx Xxxxxx Xxxxxx.
EXHIBIT I-XXIX
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxix)
(xxix) Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
matter which materially interferes with the security intended to be
provided by such Mortgage;
(a) 468 --Arrow Press Properties: capital repairs in the amount of
$85,938 were due February 28, 1998; -- past due;
(b) 618 -- Brookhill Plaza: capital repairs in the amount of $55,000
were to be completed by February 28, 1998; -- past due.
EXHIBIT I-XXXI
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxxi)
(xxxi) Except for the Mortgage Loans listed below, the terms of the related
Mortgage Note or Mortgage do not provide for the release of any material
portion of the related Mortgaged Property from the lien of such Mortgage
without payment in full of the Mortgage Loan;
(a) 339 -- Mountain Vista Apartments: Partial release of collateral
permitted to complete a subdivision process that began
pre-closing. The portion released was always intended to be
released and such collateral was not included in the Seller's
underwriting analysis; and
(b) 654 -- Northpointe Apartments: Mortgagor permitted right to
elect to defease Seller's interest in the property.
EXHIBIT I-XXXII
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxxii)
(xxxii) The related Mortgagor has covenanted in the Mortgage Loan documents to
maintain the related Mortgaged Property in compliance with all
applicable laws, zoning ordinances, rules, covenants and restrictions
affecting the construction, occupancy, use and operation of such
Mortgaged Property, and the related originator performed the type of due
diligence in connection with the origination of such Mortgage Loan
customarily performed by prudent institutional commercial and
multifamily mortgage lenders with respect to the foregoing matters; the
Seller has received no notice of any material violation of any
applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of such
Mortgaged Property; to the Seller's knowledge (based on surveys and/or
title insurance obtained in connection with the origination of such
Mortgage Loan), as of the date of such origination, no
improvement that was included for the purpose of determining the
appraised value of the related Mortgaged Property at the time of the
origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property to an extent which would
have a material adverse affect on the related Mortgagor's use and
operation of such Mortgaged Property (unless affirmatively covered by
the title insurance referred to in paragraph (xii) above), and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material extent;
(a) 359 -- Americana Apartments: building encroachments onto setback
area; 1.5 foot wall from adjoining property encroachment 1.0 a
maximum of 0.3 feet onto subject property;
(b) 591-- Panorama Medical Arts Building: encroachments onto
adjoining land (distances not given on policy);
(c) 524 -- XxXxxxxxxx Office Plaza: building on property encroaches
0.27 feet into building setback area; wall on property
encroaches 0.53 feet onto adjacent property;
(d) 468 -- Arrow Press Properties: building encroaches onto setback
areas.
(e) 506 -- Katella/Knot Shopping Center: building encroaches .145
feet onto setback area; wall over boundary line by .095 feet;
utilities such as cable tv volts, light boxes and traffic boxes
that should be placed in the right-of-way encroach onto our
right-of-way up to 20 feet; and there are other minor
encroachments;
(f) 372 -- 3 West Xxxxxxx Building: building encroaching onto our
land based on 1922 survey;
(g) 000 -- Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxx: building encroaches on
easement; sidewalk encroaches into public right-of-way.
EXHIBIT I-XXXIV
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxxiv)
(xxxiv) With respect to at least 75% of the Mortgage Loans, the related
Mortgagor has covenanted in its organizational documents and/or the
Mortgage Loan documents to own no significant asset other that the
related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged
Property;
EXHIBIT I-XXXVI
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (xxxvi)
(xxxvi) To the Seller's actual knowledge, there are no pending actions, suits or
proceedings by or before any court or governmental authority against or
affecting the related Mortgagor 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 or the ability of
the Mortgagor to pay principal, interest or any other amounts due under
such Mortgage Loan;
(a) 560 -- Spa Business Center: Foreclosure action Title Policy
claim tendered to the issuing title company on May 22, 1998,
with respect to potential losses in connection with an alleged
senior lien insured over by the Title Policy.
EXHIBIT I-XL
Exception to Schedule I Clause (xi)
None
EXHIBIT I-XLII
Exceptions to Schedule I Clause (xlii)
None
EXHIBIT II-A
Exception to Schedule II Clause (i)(A)
None
EXHIBIT II-B
Exception to Schedule II Clause (i)(B)
None
EXHIBIT II-J
Exceptions to Section II Clause (i)(J)
None
EXHIBIT II-L
Exception to Schedule II Clause (i)(L)
None
