EXHIBIT 99.2
FIRST UNION NATIONAL BANK
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of November 11, 2001 between First Union National Bank,
as seller (the "Seller" or "FUNB") and Banc of America Commercial Mortgage Inc.,
as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule"), except that the Seller has conveyed or will convey
the master servicing rights with regard to the Mortgage Loans (the "Master
Servicing Rights") to Capstone Realty Advisors, LLC, pursuant to that certain
Master Servicing Rights Purchase and Sale Agreement, dated as of November 11,
2001, as contemplated in the pooling and servicing agreement to be dated as of
November 11, 2001 (the "Pooling and Servicing Agreement"), among BACM, as
depositor, Capstone Realty Advisors, LLC, as master servicer (the "Master
Servicer"), First Union National Bank, as back-up master servicer (in such
capacity, the "Back-up Master Servicer") and special servicer (in such capacity,
the "Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in
such capacity, the "Trustee") and as REMIC administrator (in such capacity, the
"REMIC Administrator").
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, and (ii) certain other mortgage loans (the "Other Mortgage
Loans") transferred by Bank of America, N.A. ("Bank of America") to the
Purchaser pursuant to a mortgage loan purchase and sale agreement, dated as of
the date hereof between Bank of America and the Purchaser (the "Bank of
America/BACM Mortgage Loan Purchase and Sale Agreement"), to a trust (the
"Trust") created pursuant to the Pooling and Servicing Agreement. Beneficial
ownership of the assets of the Trust (such assets collectively, the "Trust
Fund") will be evidenced by a series of commercial mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and/or Fitch, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "1933 Act"). Capitalized terms
used but not otherwise defined herein have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("XXXX"), First Union Securities, Inc. ("FUSI") and Deutsche Banc
Alex. Xxxxx Inc. ("DBAB" and, together with XXXX and FUSI, the "Underwriters")
pursuant to an underwriting agreement, dated as of November 9, 2001 (the
"Underwriting Agreement"), among BACM, Bank of America, XXXX, XXXX and DBAB and
intends to sell one or more of the remaining Classes of Certificates (the
"Non-Registered Certificates") to XXXX and FUSI pursuant to a certificate
purchase agreement, dated as of November 9, 2001 (the "Certificate Purchase
Agreement"), among Bank of America, XXXX, XXXX and BACM. The Registered
Certificates are more fully described in the prospectus dated October 31, 2001
(the "Base Prospectus"), and the supplement to the Base Prospectus dated
November 9, 2001 (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus"), as each may be amended or supplemented at any
time hereafter. The Non-Registered Certificates are more fully described in the
private placement memorandum dated November 9, 2001 (the "Memorandum"), as it
may be amended or supplemented at any time hereafter.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing which amount
shall be payable on November 16, 2001 in immediately available funds.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Master Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) The Seller shall take all actions necessary or desirable to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(e) of the
Pooling and Servicing Agreement.
(d) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or to its designee all of the following items:
(i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession of the Seller that relate to the Mortgage Loans and originals or
copies of all documents, certificates and opinions in the possession of the
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans and that are reasonably
required for the ongoing administration and servicing of the Mortgage Loans
(except to the extent such items represent attorney-client privileged
communications and confidential credit analysis of the client or items to be
retained by a sub-servicer that will continue to act on behalf of the Purchaser
or its designee), and (ii) all Escrow Payments and Reserve Funds in the
possession of the Seller (or under its control) with respect to the Mortgage
Loans. Unless the Purchaser notifies the Seller in writing to the contrary, the
designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the Master Servicer.
(e) 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 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 contain the following
documents:
(i) the original Mortgage Note, endorsed (either on the face thereof
or pursuant to a separate allonge) by all intervening assignees to which
such Mortgage Note had been endorsed prior to the Trustee or, if none,
either by (A) the originator, without recourse, either in blank or to the
order of the Trustee in the following form: "Pay to the order of Xxxxx
Fargo Bank Minnesota, N.A., as trustee for the registered holders of Bank
of America, N.A. - First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2001-3, without
recourse" or (B) the originator, without recourse, representation or
warranty, expressed or implied, either in blank or to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of Bank of America,
N.A. - First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2001-3, without recourse" or,
alternatively, in either case, if the original Mortgage Note has been
lost, a lost Note affidavit and indemnity from the Seller with a copy of
such Mortgage Note (the "Note");
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any,
in each case (unless the particular item has not been returned from the
applicable recorder) with evidence of recording indicated thereon or
certified as to the recording by the applicable recording office (the
"Mortgage Instrument");
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recordation information with respect to such
Mortgage), executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, in favor of the Trustee (in
such capacity) or in blank;
(iv) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the Trustee,
if any, in each case with evidence (unless the particular item has not
been returned from the applicable recorder) of recording thereon or
certified by the applicable recording office;
(v) an original assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), in recordable
form (except for any missing recordation information with respect to such
Assignment of Leases), executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, in favor of
the Trustee (in such capacity) or in blank, which assignment may be
included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above (the documents described in clause (iii) and clause
(v) are referred to herein as "Transfer Documents");
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity) or in blank, which
assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if the instrument being modified or assumed is a recordable document
(unless the particular item has not been returned from the applicable
recording office), in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been
modified or the Mortgage Loan has been assumed;
(ix) a title insurance policy (or certificate of title insurance
policy) or a copy thereof, together with all endorsements or riders that
were issued with or subsequent to the issuance of such policy, or if the
policy has not yet been issued or located, an original or copy of a
written commitment "marked-up" at the closing of such Mortgage Loan,
interim binder or the pro forma title insurance policy evidencing a
binding commitment to issue such policy (the "Title Policy");
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession of the
Seller at the time the Mortgage Files were delivered to the Trustee;
(xi) (A) copies of any filed UCC Financing Statements and
continuation statements in favor of the originator of the Mortgage Loan
(or any assignee prior to the Trustee and which were in the possession of
the Seller at the time the Mortgage Files were delivered to the Trustee)
and (B) if any such UCC-1, UCC-2 or UCC-3 financing statements were in the
possession of the Seller at such time, an original UCC-2 or UCC-3
financing statement, as applicable, executed by the most recent assignee
of record prior to the Trustee or, if none, by the originator, or in
blank, evidencing the transfer of such security interest to the Trustee
(or a certified copy of such assignment as sent for filing);
(xii) the original or a copy of any power of attorney (with evidence
of recording thereon, if applicable) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above
was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy thereof;
(xiv) the original or copy of any intercreditor agreement relating
to such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property;
(xvi) the original or a copy of any loan agreement relating to such
Mortgage Loan;
(xvii) the original or a copy of any management agreement relating
to such Mortgage Loan;
(xviii) the original or a copy of any lock-box or cash management
agreement relating to such Mortgage Loan;
(xix) the original or a copy of any environmental report and/or
engineering report relating to such Mortgage Loan;
(xx) a copy of any Environmental Insurance Policy;
(xxi) originals or copies (provided that the originals of such
copies are delivered to the Master Servicer) of any letter(s) of credit
relating to such Mortgage Loan, if applicable, and the originals or copies
of any intervening assignments thereof;
(xxii) any Credit Lease, Lease Enhancement Policy, Guaranty or
ground lessor estoppel;
(xxiii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and a copy of the related
Co-Lender Agreement; provided that a copy of each Mortgage Note relating
to such Companion Loan, rather than the original, shall be provided, and
no assignments shall be provided; and
(xxiv) with respect to the ED Loan, originals or copies of the ED
Loan REMIC Declarations.
(f) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(e).
If the Seller cannot deliver or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi)(A) and (xiii) of the definition
of "Mortgage File", with evidence of recording or filing (if applicable and as
the case may be) thereon, solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, as the case may be, then, subject to the requirements
of Sections 4(d), the delivery requirements of Section 2(e) shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File; provided, that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple loans, documents and/or
instruments) by the Seller, to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be) is delivered to
the Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to the Trustee or such Custodian within one hundred eighty (180) days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Seller, in good faith, is attempting to obtain from the appropriate recording or
filing office such original or copy).
If the Seller cannot deliver or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (viii) (if recorded), (xi) and (xiii) of the definition of "Mortgage
File," with evidence of recording thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, then, subject to the requirements of Sections 4(d), the delivery
requirements of Section 2(e) shall be deemed to have been satisfied as to such
non-delivered document or instrument and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File, provided
that a photocopy of such non-delivered document or instrument (with evidence of
recording thereon) is delivered to the Trustee or a Custodian appointed thereby
on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the Seller does not
deliver in complete and recordable form any one of the assignments in favor of
the Trustee referred to in clause (iii), (v), (vii) or (xi)(B) of the definition
of "Mortgage File", the Seller may provisionally satisfy the delivery
requirements of Section 2(e), subject to the requirements of Sections 4(d), by
delivering with respect to such Mortgage Loan on the Closing Date an Omnibus
Assignment of such Mortgage Loan; provided that all required original
assignments with respect to such Mortgage Loan in fully complete and recordable
form shall be delivered to the Trustee or its Custodian within 180 days of the
Closing Date.
If the Seller cannot or does not so deliver or cause to be
delivered, as to any Mortgage Loan, the original of any of the documents and/or
instruments referred to in clauses (iii), (v), and (xi)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, then, subject to Section 4(d), the
delivery requirements of Section 2(e) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File; provided, that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller, to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to
the Trustee or such Custodian within one hundred eighty (180) days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Seller, is in good faith attempting to obtain from the appropriate recording or
filing office such original or copy).
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Purchaser to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
(i) The Seller shall take all actions necessary or desirable to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(e) of the
Pooling and Servicing Agreement.
(j) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties set forth in Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the date hereof that:
(i) The Seller is a national banking association, organized and
validly existing and in good standing under the banking 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) The execution and delivery of this Agreement by the Seller, and
the Seller's obligations under this Agreement, will not violate the
Seller's organizational documents or 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
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Seller has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally, as they may be applied in
the context of the insolvency of a national banking association, (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (C) 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;
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Seller's good faith and reasonable judgment, materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller;
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller, which, if determined adversely to the
Seller, would, in the Seller's good faith and reasonable judgment,
prohibit the Seller from entering into this Agreement, or would materially
and adversely affect the ability of the Seller to perform its obligations
under this Agreement;
(vii) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated herein, except
for those consents, approvals, authorizations and orders that previously
have been obtained.
(b) The Seller hereby makes the representations and warranties
contained in Schedules II, III and IV to and for the benefit of the Purchaser as
of the Closing Date (or as of such other dates specifically provided in the
particular representation and warranty), with respect to (and solely with
respect to) each Mortgage Loan.
(c) If the Seller receives written notice of a Material Document
Defect or a Material Breach pursuant to Section 2.04(a) of the Pooling and
Servicing Agreement, then the Seller shall not later than 90 days from receipt
of such notice (such 90 day period, the "Initial Resolution Period") cure or
correct such Material Document Defect or Material Breach, as the case may be, in
all material respects or repurchase the affected Mortgage Loan or REO Loan (each
a "Defective Mortgage Loan"), including the Subordinate Component of any CML, at
the applicable Purchase Price in accordance with the terms hereof; provided,
however, if the Seller certifies in writing to the Purchaser (i) that any such
Material Breach or Material Document Defect, as the case may be, does not and
will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage"
within the meaning of the REMIC Provisions, (ii) that such Material Breach or
Material Document Defect, as the case may be, is not capable of being corrected
or cured within the applicable Initial Resolution Period, (iii) that the Seller
has commenced and is diligently proceeding with the cure of such Material Breach
or Material Document Defect, as the case may be, within the applicable Initial
Resolution Period, and (iv) that the Seller anticipates that such Material
Breach or Material Document Defect, as the case may be, will be corrected or
cured within an additional period not to exceed the applicable Resolution
Extension Period (as defined below), then the Seller shall have an additional
period equal to the applicable Resolution Extension Period to complete such
correction or cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the two-year period commencing on the Closing Date, and if
the Detective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, in lieu of repurchasing such Defective
Mortgage Loan (but, in any event, no later than such repurchase would have to
have been completed), except with respect to a CML, (i) replace such Defective
Mortgage Loan with substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qua1ified Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amounts, such substitution and payment to
be effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis.
For purposes of remediating a Material Breach or Material Document
Defect with respect to any Mortgage Loan, "Resolution Extension Period" shall
mean the 90-day period following the end of the applicable Initial Resolution
Period.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4, the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualified Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (iii) send such certification
to the Purchaser or its designee. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) after the related date of substitution, and
Monthly Payments due with respect to each Defective Mortgage Loan (if any) after
the Cut-off Date (or, in the case of a Replacement Mortgage Loan, after the date
on which it is added to the Trust Fund) and on or prior to the related date of
repurchase or replacement, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution and Monthly Payments due
with respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set
forth in this Section 4 to cure a Breach or a Document Defect or repurchase or
replace the related Defective Mortgage Loan(s), constitute the sole remedies
available to the Purchaser with respect to such Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4 that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Notwithstanding Section 4(c) of this Agreement, the absence from
the Mortgage File of (i) the Note on the Closing Date or (ii) the Mortgage
Instrument, the Title Policy or copies of the Transfer Documents on the first
anniversary of the Closing Date (without the presence of any factor, such as a
lost note affidavit with an acceptable indemnity in the case of a missing
Mortgage Note, that reasonably mitigates such absence, non-conformity or
irregularity) shall be conclusively presumed to be a Material Document Defect;
provided, however, that no Document Defect (other than with respect to a
Mortgage Note, Mortgage, Title Policy, Ground Lease or any letter of credit)
shall be considered a Material Document Defect unless the document with respect
to which the Document Defect exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any borrower or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the Mortgage Loan or for any immediate servicing
obligations.
(e) Except as set forth in this Section 4(e), the
cross-collateralization with respect to a Group shall not be released. With
respect to a Material Document Defect or Material Breach as to a
Cross-Collateralized Mortgage Loan, such Material Document Defect or Material
Breach shall be deemed to affect each other Cross-Collateralized Mortgage Loan
in the related Group, and the Seller shall be required to, in its discretion,
either:
(i) repurchase or substitute for each such other
Cross-Collateralized Mortgage Loan which is materially and adversely
affected by such Material Document Defect or Material Breach unless such
Cross-Collateralized Mortgage Loan is released from its
cross-collateralization and cross-default provisions so long as such
Cross-Collateralized Mortgage Loan is held in the Trust Fund; or
(ii) repurchase or substitute for each such other
Cross-Collateralized Mortgage Loan in accordance with the provisions above
unless, in the case of a breach, the Cross-Collateralized Mortgage Loan
Repurchase Criteria with respect to such Cross-Collateralized Mortgage
Loan would be satisfied if the Seller were to repurchase or substitute for
only the affected Cross-Collateralized Mortgage Loan as to which a
Material Document Defect or Material Breach had initially occurred without
regard to this paragraph. The determination of the Master Servicer as to
whether the Cross-Collateralized Mortgage Loan Repurchase Criteria have
been satisfied shall be conclusive and binding in the absence of manifest
error.
With respect to any Cross-Collateralized Mortgage Loan which is
repurchased in the manner prescribed in clause (ii) of the immediately preceding
paragraph while the Trustee continues to hold any related Cross-Collateralized
Mortgage Loans, the Seller and the Purchaser (on behalf of its successors and
assigns) agree to forbear from enforcing any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective affected Cross-Collateralized
Mortgage Loans, including, with respect to the Trustee, the Primary Collateral
securing Mortgage Loans still held by the Trustee, so long as such exercise does
not impair the ability of the other party to exercise its remedies against its
Primary Collateral. If the exercise of remedies by one party would impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Cross-Collateralized Mortgage Loan or
Cross-Collateralized Mortgage Loans held by such party, then both parties agree
to forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Mortgage Loans can be modified in a manner
that complies with this Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Mortgage Loans shall be allocated
between such Mortgage Loans in accordance with the Mortgage Loan documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof conveyed hereunder, to the extent that
the Seller repurchases an affected Cross-Collateralized Mortgage Loan in the
manner prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans. The Mortgagor or Mortgagors of each
Cross-Collateralized Mortgage Loan are intended third party beneficiaries of the
provisions of this Section 4(e), permitting a release of cross-collateralization
to the extent provided herein, and the provisions of this Section 4(e) shall not
be amended without the consent of such Mortgagor or Mortgagors. Notwithstanding
the foregoing, the Seller may repurchase all of such Cross-Collateralized
Mortgage Loans as to which a document omission or defect or breach has occurred
or has been deemed to occur pursuant to this Section 4(e).
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's articles of incorporation or
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Purchaser has the full power and authority and legal right
to enter into and consummate all transactions contemplated by this
Agreement, has the full power and authority and legal right to transfer
the Mortgage Loans to the Trustee, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law,
for the execution, delivery and performance by the Purchaser of or
compliance by the Purchaser with this Agreement, or the consummation by
the Purchaser of any transaction described in this Agreement;
(vi) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration described in Section 1;
(vii) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Purchaser,
results or will result in the creation or imposition of any lien on any of
the Purchaser's assets or property, or 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 or (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;
(viii) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement and the transfer of the Mortgage Loans to the
Trustee will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation might have consequences which would materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the condition (financial or other) or operations
of the Purchaser or its properties;
(ix) No litigation is pending with regard to which the Purchaser has
received service of process or, to the best of the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, which would materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser; and
(x) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than XXXX, XXXX and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with KPMG in making available all
information and taking all steps reasonably necessary to permit such accountants
to deliver the letters required by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4(a) and 4(b) and 5 hereof,
respectively, shall be true and correct in all material respects as of the
Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof; and
(iv) 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.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement shall be duly executed and delivered by the
Purchaser and the Seller; and
(b) An Officer's Certificate, substantially in the form of Exhibit
A-1, executed by an authorized officer of the Seller, in his or her individual
capacity, and dated the Closing Date, upon which XXXX, XXXX and BACM may rely,
attaching thereto as exhibits the organizational documents of the Seller; and
(c) A certificate of good standing regarding the Seller from the
Comptroller of Currency, dated not earlier than 60 days prior to the Closing
Date; and
(d) A certificate of the Seller substantially in the form of Exhibit
A-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser, XXXX and FUSI
may rely; and
(e) One or more written opinions of counsel for the Seller,
reasonably acceptable to the Rating Agencies and counsel for the Purchaser,
dated the Closing Date and addressed to the Purchaser, BASL, FUSI, the Trustee
and each Rating Agency; and
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. 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 1933 Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), against any and all losses, expenses (including the
reasonable fees and expenses of legal counsel), 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 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 (the items in (A) and (B) being defined as the "Disclosure
Material"), 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 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 and will be used to prepare the Prospectus Supplement
including, without limitation, Annex A and Annex B thereto, the Memorandum, the
Diskette, any 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 Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Seller set forth (Y) in
the Prospectus Supplement and the Memorandum under the headings: "Summary of
Prospectus Supplement - Relevant Parties and Dates - Mortgage Loan Sellers,"
"Summary of Prospectus Supplement - Mortgage Loans," "Risk Factors - Risks
Related to the Mortgage Loans" and "Description of the Mortgage Pool" and (Z) on
Annex A and Annex B to the Prospectus Supplement and, to the extent consistent
therewith, on a Diskette, (III) 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 any mortgage loan files or other
written information relating to the Mortgage Loans distributed by the Seller to
prospective investors in the Non-Registered Certificates (the "Private
Information"), or (IV) 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 4; provided that the indemnification provided by this Section 9 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
Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties
set forth in the Data File and Annex A and Annex B 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.
The information described in clauses (I) through (IV) above is collectively
referred to as the "Seller Information". The Seller shall reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity will be in addition to any
liability which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-65298 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "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 or compact disc attached to each of the Prospectus and the Memorandum;
and "Data File" shall mean the compilation of information and data regarding the
Mortgage Loans covered by the Agreed Upon Procedures Letters, dated October 31,
2001 and rendered by KPMG (a "hard copy" of which Data File was initialed on
behalf of the Seller and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of either the 1933 Act or the 1934 Act, against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), 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) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (in preliminary or
final form), or in an amendment thereof or supplement thereto, or 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
not misleading in the light of the circumstances under which they were made,
except to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is based upon (i) the Seller Information or (ii)
information set forth in the Prospectus Supplement under the headings "Summary
of Prospectus Supplement - Relevant Parties and Dates - Swap Contract," "Risk
Factors - Risks Related to the Certificates - Risks Associated with the Swap
Contract May Affect Class A-2F Investors," and "Description of the Swap
Contract," and the Purchaser shall reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(d) Promptly after receipt by any person entitled to indemnification
under this Section 9 (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 9, 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 under this Section 9 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have otherwise than under this
Section 9. 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 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 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 9(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably 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).
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under Section 9(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.
(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(e) 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 9(e) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 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 9, 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.
(g) The indemnity and contribution agreements contained in this
Section 9 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.
SECTION 10. 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 aggregate Cut-off Date Balance of the Mortgage Loans
represents of the Initial Pool Balance): (i) the costs and expenses of printing
and delivering the Pooling and Servicing Agreement and the Certificates; (ii)
the costs and expenses of printing (or otherwise reproducing) and delivering a
preliminary and final Prospectus and Memorandum relating to the Certificates;
(iii) the initial fees, costs, and expenses of the Trustee (including reasonable
attorneys' fees); (iv) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered; (v) the fees
charged by the Rating Agencies to rate the Certificates so rated; (vi) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof; (vii) the fees and disbursements of
a firm of certified public accountants selected by the Purchaser and the Seller
with respect to numerical information in respect of the Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and any related
Computational Materials or ABS Term Sheets, including in respect of the cost of
obtaining any "comfort letters" with respect to such items; (viii) the
reasonable out-of-pocket costs and expenses in connection with the qualification
or exemption of the Certificates under state securities or "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (ix) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (x) the reasonable fees and
disbursements of counsel to the Underwriters. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., Bank
of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxxxx X. Xxxxxxx with copies to Xxxxx X. Xxxxxx, Esq. at Bank
of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx
& Xxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or
such other address as may hereafter be furnished to the Seller in writing by the
Purchaser; if to the Seller, addressed to First Union National Bank, Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxxx, or to such other addresses as may hereafter be furnished to the
Purchaser by each party to the other parties in writing.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 13. 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 14. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. 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 THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE
LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loan to the Trust as contemplated by the recitals hereto, the Purchaser
shall have the right to assign its rights and obligations under this Agreement
to the Trustee for the benefit of the Certificateholders. To the extent of any
such assignment, the Trustee or its designee (including, without limitation, the
Special Servicer) shall be deemed to be the Purchaser hereunder with the right,
for the benefit of the Certificateholders, to enforce the obligations of the
Seller under Sections 2, 3, 4, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of this
Agreement as contemplated by Section 2.04 of the Pooling and Servicing
Agreement. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser and the Underwriters
(as intended third party beneficiaries hereof), their permitted successors and
assigns. 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 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced; provided, however, that notwithstanding the foregoing and any other
provisions of this Agreement, no term or provision of this Agreement shall be
waived or modified in any manner that would affect the rights hereunder of any
of the third party beneficiaries identified in Section 9 hereof without the
written consent of such third party beneficiary.
SECTION 19. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event notwithstanding the intent of
the parties, that the Mortgage Loans are held to be property of the Seller, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans, then it is intended that, (i) this Agreement shall also
be deemed to be a security agreement within the meaning of Articles 8 and 9 of
the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; (ii) the conveyance provided for in this Section
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of its right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Notes, the Mortgages, any related insurance policies and all other
documents in the related Mortgage Files, (B) all amounts payable to the holders
of the Mortgage Loans in accordance with the terms thereof (other then scheduled
payments of interest and principal due on or before the Cut-off Date) and (C)
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, whether in the form of cash,
instruments, securities or other property; (iii) the possession by the Purchaser
or its agent 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" or possession by a purchaser or a
Person designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Section 9-305 or 9-115 thereof); and (iv) notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such property
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement. In
connection herewith, the Purchaser shall have all of the rights and remedies of
a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction.
SECTION 20. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Group"), by their terms,
cross-defaulted and cross-collateralized. Each Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
20 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including without
limitation, each of the representations and warranties set forth in Schedules
II, III and IV hereto and each of the capitalized terms used but not defined
herein but defined in the Pooling and Servicing Agreement, shall be interpreted
in a manner consistent with this Section 20. In addition, if there exists with
respect to any Group only one original of any document referred to in the
definition of "Mortgage File" in this Agreement and in the Pooling and Servicing
Agreement and covering all the Mortgage Loans in such Group, then the inclusion
of the original of such document in the Mortgage File for any of the Mortgage
Loans in such Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan"
shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans.
SECTION 21. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
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.
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Trust ID Sequence Number Loan Number Property Name
-------- --------------- ----------- --------------------------
1 A1 265950680 Paces Cove Apartments
2 A2 265950685 Tradewinds Apartments
3 A3 265950683 Deerfield Apartments
4 A4 265950684 Meadow Creek Apartments
5 A5 265950679 Main Park Apartments
6 A6 265950678 Cottonwood Crossing Apartments
7 A7 265950682 Pinnacle Ridge Apartments
8 A8 265950681 Wildwood Apartments
11 A9 502694004 The Colleges at XxXxx Xxxxxxxxxx
00 X00 000000000 Xxx Xxxxxxxxxx Xxxxxxx Apartments
16 A11 502692702 Waterview Apartments
17 A12 265950691 The Regent Apartments
20 A13 502684101 Xxxxx on La Xxxxx Apartments
21 A14 265330822 Xxxxxxxxxx Court Apartments
25 A15 265950667 Amberwood Apartments
26 A16 502700404 The Madison
29 A17 265950618 Sterling University Terrace
33 A18 265950688 Terrace View Apartments Phases 1,2,3 & 9
34 A19 265950689 Terrace View Apartments Phases 5 & 7
36 A20 265950690 North Xxxx Xxxxxxx Xxxxxxxxxx
00 X00 000000000 Xxxxxxxx Xxxxxxx Apartments
39 A22 265950687 Terrace View Apartments Phase 4
40 A23 265950664 Oaktown Apartments
41 A24 265950686 Xxxxxxx Xxxx Xxxxxxxxxx Xxxxx 0
42 A25 502685001 000-000 Xxxx 000xx Xxxxxx
43 A26 502700902 Sunpointe Apartments
44 A27 265950610 Woodlawn House Apartments
45 A28 502700403 Xxxxxxxx Xxxxxx
00 X00 000000000 Xxxxxx Xxxxxxx Apartments
49 A30 265950638 Xxxxxxxxxx Xxxxxxxx Xxxxxx
00 X00 000000000 Xxx Xxxx Shopping Center
52 A32 255999897 Monroe Mall
54 A33 502694206 Fashion Crossing
56 A34 502704705 Aquidneck Shopping Centre
57 A35 265950570 Xxxxxxxxx Village Shopping Center
59 A36 502695401 Xxxxxx Xxxx Xxxxxx
00 X00 000000000 Xxxxx Xxx Plaza
63 A38 265950596 Eastern Marketplace - Retail Inline
64 A39 265950509 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
00 X00 000000000 Xxxxxx Xxxxx
67 A41 502704602 Xxxxxxx Xxxxxx
00 X00 000000000 Xxxxxxx Xxxx Xxxx Center
69 A43 502691106 Rancho Penasquitos Towne Centre II
71 A44 265950598 Eastern Marketplace - Retail Pads
73 A45 265950535 Rainbow Plaza
74 A46 265950510 000 Xxxxxxxxxxx Xxxxxx
75 A47 265950504 Club Haven Shopping Center
76 A48 265330767 Xxxxxx Xxxxx
00 X00 000000000 Xx Xxxxx Shopping Center
89 A50 502705901 Sterling Jewelers
91 A51 265950447 Orchard Retail Center
92 A52 825114191 Rite Aid Northporte Bay City
93 A53 825999802 Rite Aid Aarmax Gratiot 15
95 A54 835300003 Rite Aid Xxxxxxx Xxxxxxxx
00 X00 000000000 Xxxxxx Xxxxx II Shopping Center
97 A56 835300002 Rite Aid, Cotton Venture
98 A57 825999527 Rite Aid Oscoda
99 A58 825999525 Rite Aid Grayling
100 A59 265950485 Flamingo Decatur Plaza
101 A60 265950418 Kickapoo Pointe Shopping Center
102 A61 825999528 Rite Aid St Xxxx Xxxxxxxxxx
103 A62 825999655 Rite Aid Xxxxx Xxxx X00
000 X00 265950529 Hartselle Shopping Center
107 A64 502697601 000 Xxxxxxx Xxx
108 A65 502700203 Crossroads Technology Park
109 A66 265950484 One Peachtree Pointe
117 A67 265950605 Summit Medical Center
119.1 A68.1 265950558 Xxxxxxx Professional Park - Phase II
119.2 A68.2 265950558 Xxxxxxx Professional Park - Phase I
119 A68 265950558 Xxxxxxx Professional Park (Roll-Up)
120 A69 502694904 Xxx Xxxxxxxx Xxxxxxxx
000 X00 000000000 Xxxx Xxxx Xxxxxxx
122 A71 265950630 Xxxxxx Xxxxx
000 X00 265950427 Xxxxx Xxxxxxx Xxxx Xxxxxxxx
000 X00 265950580 Homewood Xxxxxx - Xxxxxxx
000 X00 000000000 Xxxxxxxx Xxxxxxxxx - Xxxxxxxx
129.1 A75.1 502708102 WOW - Oshkosh
129.2 A75.2 502708102 WOW - Janesville
129.3 A75.3 502708102 WOW - Ashwaubenon
129 A75 502708102 WOW Logistics (Roll-Up)
136 A76 265950405 Xxx Xxxxxx Xxxx
000 X00 265950573 Metro Storage
139 A78 265950404 Romeo Plank Plaza
140 A79 265950652 DKS Associates Office Building
Trust ID Street Address City State Zip Code Mortgage Rate(%)
-------- ------------------------ ---------- ----- -------- ----------------
1 00000 Xxxxxxx Xxxxx Xxxxxx XX 00000 7.160%
2 0 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 7.160%
3 000 Xxxxxxxxxxxx Xxxxx Xxxxxx XX 00000 7.160%
4 00000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000 7.160%
5 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxx XX 00000 7.160%
6 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX 00000 7.160%
7 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 7.160%
8 000 Xxxx Xxxxx Xxxxx Xxxxxx XX 00000 7.160%
11 000 XxXxx Xxxx Xxxxx XX 00000 7.430%
14 0000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 7.340%
00 Xxx Xxxxxxxxx Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 7.310%
17 0000 Xxxxxxxxx Xxxxxx, XX Xxxxxxxxxx XX 00000 7.390%
20 0000 Xx Xxxxx Xxxxxxx XX 00000 7.375%
21 0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 8.140%
25 000 Xxx Xxxx Xxxx Xxxxx XX 00000 7.620%
26 00000 Xxxxxxx Xxxxxx Xxxxx Xxx Xxxx Xxxx XX 00000 7.170%
29 000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 7.440%
33 000 Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 7.400%
34 000 Xxxx Xxxx Xxxx, 0000-X Xxxxxxxxxx XX 00000 7.400%
36 0000 Xxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000 7.400%
37 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 7.710%
39 000 Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 7.400%
40 00000 Xxxxxxxxxx Xxxxxxx XX 00000 7.750%
41 000 Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 7.400%
42 000-000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 7.180%
43 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000 7.250%
44 0000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 7.000%
45 0000 Xxxxx Xx Xxxx Xxxx Xxxxxxxxxx XX 00000 7.170%
46 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000 7.500%
49 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 7.720%
51 0000 Xxx Xxxx Xxxx Xxxxxxxxxxxxxxx XX 00000 7.380%
52 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 7.500%
54 0000 Xxxxx Xxxxxxxxxx Xxxxxx (Xxxxx 0) Xxxxx Xxxxxxxxx XX 00000 7.390%
56 00 Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 7.080%
57 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000 7.390%
59 0000-0000 Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 7.600%
61 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 7.750%
63 10050-10100 X. Xxxxxxx Xxx. Xxxxxxxxx XX 00000 7.350%
64 0000-0000 XX 0000 Xxxx Xxxxxxx XX 00000 7.080%
65 XXX xx Xxxxxx Xxxx & Xxxxx Xxxxx 000 Xxxxxx XX 00000 7.650%
67 0000 X. Xxxxxxx Xx. Xxxxxxxxx XX 00000 7.450%
68 14423-14455 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000 7.600%
69 13161-13185 Xxxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 7.440%
71 00000-00000 X. Xxxxxxx Xxx. Xxxxxxxxx XX 00000 7.350%
73 54728 - 00000 Xxxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 7.300%
74 000 Xxxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 7.540%
00 Xxxxxxx Xxxx Xxxx & Xxxxx Xxxxx Xxxx Xxxxxxx-Xxxxx XX 00000 7.000%
76 0000-0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 7.250%
88 00000 Xxxxx Xxxxx Xxxx Xx Xxxxx XX 00000 7.250%
89 00000 Xxxxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 8.030%
91 00000 XX 00xx Xxx Xxxxxxxxx XX 00000 8.000%
00 Xxxxxxxxx & Xxxxxxxx Xxx Xxxx XX 00000 7.501%
00 00 Xxxx Xxxx & Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000 6.875%
95 00000 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxx XX 00000 7.375%
96 0000 X. Xxxx Xxxxxx Xxxx Xxxx XX 00000 7.860%
97 00000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxx XX 00000 6.875%
98 SEC of XX 00 xxx Xxxxxxxxx Xxxxxx Xxxxxx XX 00000 7.125%
99 000-000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 7.125%
100 0000 X. Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 7.500%
101 0000 X. Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 8.460%
000 Xxxxxxxxxx Xx xxx Xxxxx Xx. Xx. Xxxxx XX 00000 7.125%
103 000 X. Xxxxx Xxxxxx Xxxxx Xxxx XX 00000 7.000%
104 0000 Xxxxxxx 00, XX Xxxxxxxxx XX 00000 7.300%
107 000 Xxxxxxx Xxx Xxx Xxxx XX 00000 7.700%
108 0000-0000 Xxxxxxx Xxxx Xxxxx Xxxx XX 00000 7.250%
109 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 7.250%
117 6932 & 0000 Xxxxxxxx Xx Xxxxxxxxxx XX 00000 7.375%
119.1 19521-19541 Toledo Xxxxx Xxxx. Xxxx Xxxxxxxxx XX 00000
119.2 0000-0000 Xxxxxx Xxxx. Xxxx Xxxxxxxxx XX 00000
119 7.600%
120 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 7.350%
121 3820 & 0000 Xx Xxxxxx Xxxx. Xx Xxxxxx Xxxxx XX 00000 7.650%
122 0000-0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 7.125%
124 0000 Xxxx 000xx Xxx. Xxxxx XX 00000 7.750%
125 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 8.150%
126 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 8.250%
129.1 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
129.2 2727 & 0000X Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
129.3 0000-0000 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000
129 7.480%
136 0 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000 8.125%
138 00000 Xxx Xxxx Xx Xxxxxx XX 00000 7.620%
139 00000 Xxxx Xx Xxxxxx XX 00000 7.800%
140 000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx XX 00000 7.630%
Remaining Term To Stated
Stated Maturity/ Maturity
Trust ID Amortization Basis Original Balance(i) Cut-off Balance(i) ARD (months) Date/ARD Due Date
-------- ------------------ ------------------- ------------------ ---------------- -------- ---------
1 ACT/360 11,165,000.00 11,135,936.78 116 07/01/11 1st
2 ACT/360 11,100,000.00 11,071,105.96 116 07/01/11 1st
3 ACT/360 10,220,000.00 10,193,396.68 116 07/01/11 1st
4 ACT/360 9,590,000.00 9,565,036.61 116 07/01/11 1st
5 ACT/360 8,465,000.00 8,442,965.02 116 07/01/11 1st
6 ACT/360 6,055,000.00 6,039,238.42 116 07/01/11 1st
7 ACT/360 5,005,000.00 4,991,971.65 116 07/01/11 1st
8 ACT/360 3,400,000.00 3,391,149.56 116 07/01/11 1st
11 ACT/360 19,100,000.00 19,064,535.85 117 08/01/11 1st
14 ACT/360 17,120,000.00 17,120,000.00 116 07/01/11 1st
16 ACT/360 14,300,000.00 14,280,788.29 118 09/01/11 1st
17 ACT/360 13,000,000.00 12,968,266.49 116 07/01/11 1st
20 ACT/360 11,312,000.00 11,284,269.34 116 07/01/11 1st
21 ACT/360 10,000,000.00 9,984,853.27 95 10/01/09 1st
25 ACT/360 9,040,000.00 9,012,627.02 115 06/01/11 1st
26 ACT/360 8,600,000.00 8,577,675.22 116 07/01/11 1st
29 ACT/360 7,500,000.00 7,500,000.00 114 05/01/11 1st
33 ACT/360 6,000,000.00 5,985,395.28 116 07/01/11 1st
34 ACT/360 5,800,000.00 5,785,882.11 116 07/01/11 1st
36 ACT/360 4,400,000.00 4,389,289.89 116 07/01/11 1st
37 ACT/360 4,300,000.00 4,279,663.32 112 03/01/11 1st
39 ACT/360 4,000,000.00 3,990,263.54 116 07/01/11 1st
40 ACT/360 3,270,000.00 3,260,441.99 115 06/01/11 1st
41 ACT/360 3,000,000.00 2,994,383.88 117 08/01/11 1st
42 ACT/360 2,750,000.00 2,742,880.91 116 07/01/11 1st
43 ACT/360 2,625,000.00 2,619,882.52 117 08/01/11 1st
44 ACT/360 2,550,000.00 2,503,017.03 114 05/01/11 1st
45 ACT/360 2,380,000.00 2,373,821.76 116 07/01/11 1st
46 ACT/360 1,800,000.00 1,790,987.43 112 03/01/11 1st
49 ACT/360 21,300,000.00 21,252,756.38 116 07/01/11 1st
51 ACT/360 17,850,000.00 17,806,303.74 116 07/01/11 1st
52 ACT/360 16,957,944.75 16,842,779.31 107 10/01/10 1st
54 ACT/360 15,600,000.00 15,570,716.37 117 08/01/11 1st
56 ACT/360 13,000,000.00 12,981,514.90 118 09/01/11 1st
57 ACT/360 12,400,000.00 12,400,000.00 116 07/01/11 1st
59 ACT/360 10,600,000.00 10,575,642.84 116 07/01/11 1st
61 ACT/360 9,750,000.00 9,692,716.13 111 02/01/11 1st
63 ACT/360 9,045,000.00 9,022,669.49 116 07/01/11 1st
64 ACT/360 8,737,500.00 8,694,227.57 113 04/01/11 1st
65 ACT/360 8,100,000.00 8,046,929.84 110 01/01/11 1st
67 ACT/360 7,500,000.00 7,477,104.95 117 08/01/11 1st
68 ACT/360 7,400,000.00 7,386,891.27 117 08/01/11 1st
69 ACT/360 6,775,000.00 6,747,757.07 116 07/01/11 1st
71 ACT/360 5,455,000.00 5,441,532.57 116 07/01/11 1st
73 ACT/360 5,200,000.00 5,154,473.87 115 06/01/11 1st
74 ACT/360 5,150,000.00 5,137,957.74 116 07/01/11 1st
75 ACT/360 5,150,000.00 5,131,673.53 116 07/01/11 1st
76 ACT/360 4,800,000.00 4,768,361.07 111 02/01/11 1st
88 ACT/360 2,400,000.00 2,393,906.38 116 07/01/11 1st
89 ACT/360 2,307,065.56 2,292,220.70 116 07/11/11 11th
91 ACT/360 2,200,000.00 2,186,767.64 110 01/01/11 1st
92 30/360 2,840,914.00 2,615,158.04 143 10/01/13 1st
93 30/360 2,753,352.00 2,531,193.53 143 10/01/13 1st
95 30/360 2,612,675.00 2,438,331.06 143 10/01/13 1st
96 ACT/360 1,950,000.00 1,945,852.99 116 07/01/11 1st
97 30/360 2,505,340.00 2,331,741.66 143 10/01/13 1st
98 30/360 1,787,193.36 1,779,306.80 143 10/01/13 1st
99 30/360 1,673,584.09 1,666,198.69 143 10/01/13 1st
100 ACT/360 1,650,000.00 1,641,738.46 112 03/01/11 1st
101 ACT/360 1,640,000.00 1,630,560.15 109 12/01/10 1st
102 30/360 1,509,606.56 1,502,944.25 143 10/01/13 1st
103 30/360 1,959,440.00 1,791,387.20 143 10/01/13 1st
104 ACT/360 1,200,000.00 1,194,378.32 113 04/01/11 1st
107 ACT/360 32,000,000.00 31,942,897.41 117 08/01/11 1st
108 ACT/360 30,000,000.00 30,000,000.00 60 11/01/06 1st
109 ACT/360 27,000,000.00 27,000,000.00 115 06/01/11 1st
117 ACT/360 5,100,000.00 5,080,592.39 114 05/01/11 1st
119.1
119.2
119 ACT/360 4,075,000.00 4,060,421.60 54 05/01/06 1st
120 ACT/360 3,950,000.00 3,950,000.00 117 08/01/11 1st
121 ACT/360 3,400,000.00 3,394,060.95 117 08/01/11 1st
122 ACT/360 2,500,000.00 2,491,381.17 115 06/01/11 1st
124 ACT/360 1,556,000.00 1,546,858.12 111 02/01/11 1st
125 ACT/360 10,700,000.00 10,651,685.31 115 06/01/11 1st
126 ACT/360 6,825,000.00 6,765,922.32 111 02/01/11 1st
129.1
129.2
129.3
129 ACT/360 18,100,000.00 18,066,850.90 117 08/01/11 1st
136 ACT/360 2,250,000.00 2,232,473.94 115 06/01/11 1st
138 ACT/360 2,700,000.00 2,693,831.99 116 07/01/11 1st
139 ACT/360 5,650,000.00 5,614,303.09 110 01/01/11 1st
140 ACT/360 4,400,000.00 4,386,712.74 115 06/01/11 1st
Total 597,291,412.26
Master Original
Servicing Amortization
Trust ID Monthly Payment Admin. Fee Fee Ownership Interest Crossed (months)
-------- --------------- ---------- --------- ------------------ ---------------- ------------
1 $ 75,484.61 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
2 $ 75,045.16 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
3 $ 69,095.63 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
4 $ 64,836.31 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
5 $ 57,230.39 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
6 $ 40,936.80 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
7 $ 33,837.93 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
8 $ 22,986.81 0.05200% 0.05000% Fee Simple Yes(BACM 01-3-I) 360
11 $ 132,635.66 0.05200% 0.05000% Leasehold No 360
14 $ 118,966.94 0.05200% 0.05000% Fee Simple No 348
16 $ 98,133.84 0.05200% 0.05000% Fee Simple No 360
17 $ 89,920.71 0.05200% 0.05000% Fee Simple No 360
20 $ 78,129.17 0.05200% 0.05000% Fee Simple No 360
21 $ 74,354.76 0.05200% 0.05000% Fee Simple No 360
25 $ 63,953.46 0.05200% 0.05000% Fee Simple No 360
26 $ 58,201.23 0.05200% 0.05000% Fee Simple No 360
29 $ 52,133.30 0.05200% 0.05000% Fee Simple No 360
33 $ 41,542.79 0.05200% 0.05000% Fee Simple No 360
34 $ 40,158.03 0.05200% 0.05000% Fee Simple No 360
36 $ 30,464.71 0.05200% 0.05000% Fee Simple No 360
37 $ 30,686.95 0.05200% 0.05000% Fee Simple No 360
39 $ 27,695.19 0.05200% 0.05000% Fee Simple No 360
40 $ 23,426.68 0.05200% 0.05000% Fee Simple No 360
41 $ 20,771.39 0.05200% 0.05000% Fee Simple No 360
42 $ 18,629.46 0.05200% 0.05000% Fee Simple No 360
43 $ 17,907.13 0.05200% 0.05000% Fee Simple No 360
44 $ 22,920.12 0.05200% 0.05000% Fee Simple No 180
45 $ 16,106.85 0.05200% 0.05000% Fee Simple No 360
46 $ 12,585.86 0.05200% 0.05000% Fee Simple No 360
49 $ 152,154.47 0.05200% 0.05000% Fee Simple No 360
51 $ 123,346.35 0.05200% 0.05000% Fee Simple No 360
52 $ 118,572.41 0.05200% 0.05000% Fee Simple No 360
54 $ 107,904.85 0.05200% 0.05000% Fee Simple No 360
56 $ 87,188.91 0.05200% 0.05000% Fee Simple No 360
57 $ 85,770.52 0.05200% 0.05000% Fee Simple No 360
59 $ 74,843.92 0.05200% 0.05000% Fee Simple No 360
61 $ 69,850.19 0.05200% 0.05000% Fee Simple No 360
63 $ 62,317.53 0.05200% 0.05000% Fee Simple No 360
64 $ 58,601.01 0.05200% 0.05000% Fee Simple No 360
65 $ 57,470.66 0.05200% 0.05000% Fee Simple No 360
67 $ 55,180.65 0.05200% 0.05000% Fee Simple No 300
68 $ 52,249.53 0.05200% 0.05000% Fee Simple No 360
69 $ 49,802.54 0.05200% 0.05000% Fee Simple No 300
71 $ 37,583.43 0.05200% 0.05000% Fee Simple No 360
73 $ 41,257.23 0.05200% 0.05000% Fee Simple No 240
74 $ 36,150.71 0.05200% 0.05000% Fee Simple No 360
75 $ 34,263.08 0.05200% 0.05000% Fee Simple No 360
76 $ 32,744.46 0.05200% 0.05000% Fee Simple No 360
88 $ 16,372.23 0.05200% 0.05000% Fee Simple No 360
89 $ 19,497.85 0.05200% 0.05000% Fee Simple No 235
91 $ 16,142.82 0.05200% 0.05000% Fee Simple No 360
92 $ 22,888.65 0.05200% 0.05000% Fee Simple No 144
93 $ 21,181.89 0.05200% 0.05000% Fee Simple No 144
95 $ 21,003.79 0.05200% 0.05000% Fee Simple No 144
96 $ 14,118.56 0.05200% 0.05000% Fee Simple No 360
97 $ 19,311.84 0.05200% 0.05000% Fee Simple No 144
98 $ 18,498.46 0.05200% 0.05000% Fee Simple No 144
99 $ 17,322.54 0.05200% 0.05000% Fee Simple No 144
100 $ 11,537.04 0.05200% 0.05000% Fee Simple No 360
101 $ 12,563.72 0.05200% 0.05000% Fee Simple No 360
102 $ 15,625.28 0.05200% 0.05000% Fee Simple No 144
103 $ 15,280.03 0.05200% 0.05000% Fee Simple No 144
104 $ 8,226.85 0.05200% 0.05000% Fee Simple No 360
107 $ 228,806.06 0.05200% 0.05000% Leasehold No 356
108 $ 204,652.88 0.05200% 0.05000% Fee Simple No 360
109 $ 184,187.60 0.05200% 0.05000% Fee Simple No 360
117 $ 35,224.43 0.05200% 0.05000% Fee Simple No 360
119.1
119.2
119 $ 28,772.54 0.05200% 0.05000% Fee Simple No 360
120 $ 27,214.40 0.05200% 0.05000% Fee Simple No 360
121 $ 24,123.49 0.05200% 0.05000% Fee Simple No 360
122 $ 16,842.96 0.05200% 0.05000% Fee Simple No 360
124 $ 11,147.37 0.05200% 0.05000% Fee Simple No 360
125 $ 83,650.38 0.05200% 0.05000% Fee Simple No 300
126 $ 53,811.72 0.05200% 0.05000% Leasehold No 300
129.1
129.2
129.3
129 $ 126,310.04 0.05200% 0.05000% Fee Simple No 360
136 $ 18,995.32 0.05200% 0.05000% Fee Simple No 240
138 $ 19,101.15 0.05200% 0.05000% Fee Simple No 360
139 $ 40,672.68 0.05200% 0.05000% Fee Simple No 360
140 $ 31,158.06 0.05200% 0.05000% Fee Simple No 360
Trust ID ARD Loan Grace Period Mortgage Loan Seller Early Defeasance
-------- -------- ------------ -------------------- ----------------
1 No 7 First Union No
2 No 7 First Union No
3 No 7 First Union No
4 No 7 First Union No
5 No 7 First Union No
6 No 7 First Union No
7 No 7 First Union No
8 No 7 First Union No
11 Yes 7 First Union No
14 No 7 First Union No
16 No 7 First Union No
17 No 7 First Union No
20 No 7 First Union No
21 No 7 First Union No
25 No 7 First Union No
26 No 7 First Union No
29 No 7 First Union No
33 No 7 First Union No
34 No 7 First Union No
36 No 7 First Union No
37 No 7 First Union No
39 No 7 First Union No
40 No 7 First Union No
41 No 7 First Union No
42 No 7 First Union No
43 No 7 First Union No
44 No 7 First Union No
45 No 7 First Union No
46 No 7 First Union No
49 No 7 First Union No
51 No 7 First Union No
52 No 7 First Union No
54 No 7 First Union No
56 No 7 First Union No
57 No 7 First Union No
59 No 7 First Union No
61 No 7 First Union No
63 No 7 First Union No
64 No 7 First Union No
65 No 7 First Union No
67 No 7 First Union No
68 No 7 First Union No
69 No 7 First Union No
71 No 7 First Union No
73 No 7 First Union No
74 No 7 First Union No
75 No 7 First Union No
76 No 7 First Union No
88 No 7 First Union No
89 No 0 First Union No
91 No 7 First Union No
92 No 7 First Union No
93 No 5 First Union No
95 No 7 First Union No
96 No 7 First Union No
97 No 7 First Union No
98 No 7 First Union No
99 No 7 First Union No
100 No 7 First Union No
101 No 7 First Union No
102 No 7 First Union No
103 No 7 First Union No
104 No 7 First Union No
107 No 7 First Union No
108 No 7 First Union No
109 No 7 First Union No
117 No 7 First Union No
119.1
119.2
119 No 7 First Union No
120 No 7 First Union No
121 No 7 First Union No
122 No 7 First Union No
124 No 7 First Union No
125 No 7 First Union No
126 No 7 First Union No
129.1
129.2
129.3
129 No 7 First Union No
136 No 7 First Union No
138 No 7 First Union No
139 No 7 First Union No
140 No 7 First Union No
(i) The original principal and cut-off balances for Rite Aid Aarmax Gratiot 15,
Rite Aid Clinton Township, Rite Aid Northporte Bay City, Rite Aid Cotton Venture
and Rite Aid Xxxxx City M53 are inclusive of the original amortization.
SCHEDULE II
GENERAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
FOR PURPOSES OF THIS SCHEDULE II, SCHEDULE III AND SCHEDULE IV, THE
PHRASE "THE SELLER'S KNOWLEDGE" AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL
MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF
KNOWLEDGE OF THE SELLER, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE
UNDERWRITING, ORIGINATION OR SALE OF THE MORTGAGE LOANS REGARDING THE MATTERS
EXPRESSLY SET FORTH BELOW IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO.
1. 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, and is consistent with the definition of Mortgage Loan
Schedule in the Pooling and Servicing Agreement.
2. 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.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests or
any other ownership interest of any nature encumbering such Mortgage Loan.
Upon consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, the Seller will have validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to such Mortgage
Loan free and clear of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related Mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with their
terms, except (i) that certain provisions contained in such Mortgage Loan
documents are or may be unenforceable in whole or in part under applicable
state or federal laws, but neither the application of any such laws to any
such provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption or other laws affecting the enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). The
related Mortgage Note and Mortgage contain no provision limiting the right
or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, to the actual 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, except in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
assignment from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, redemption, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law). Each
Mortgage and Assignment of Leases is freely assignable.
8. Except as noted below, each related Mortgage is a valid and enforceable
first lien on the related Mortgaged Property subject only to the
exceptions set forth in paragraph (5) above and the following title
exceptions (each such exception, a "Title Exception", and collectively,
the "Title Exceptions"): (a) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually
or in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the
value of the Mortgaged Property, (c) the exceptions (general and specific)
set forth in such policy or appearing of record, (d) other matters to
which like properties are commonly subject, (e) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar proceeding
(provided that such tenants are performing under such leases) (f) if such
Mortgage Loan is cross-collateralized with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes with
the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations when they become due or materially and adversely affects the
value of the Mortgaged Property or (g) if such Mortgage Loan is an AB
Mortgage Loan, lien of the Mortgage for the related Companion Loan. Except
with respect to cross-collateralized and cross-defaulted Mortgage Loans
and except as noted below, there are no mortgage loans that are senior or
pari passu with respect to the related Mortgaged Property or such Mortgage
Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property reasonably necessary to operate
the Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property or which is material to the value (as determined in the
related Appraisal) of the related real estate constituting part of the
Mortgaged Property, (in either case, other than any personal property
subject to a purchase money security interest or a sale and leaseback
financing arrangement permitted under the terms of such Mortgage Loan or
any other personal property leases applicable to such personal property)
to the extent perfection may be effected pursuant to applicable law by
recording or filing, and the Mortgages, security agreements, chattel
Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and
enforceable lien and priority security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivorship, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to
the extent that possession or control of such items or actions other than
the filing of UCC Financing Statements are required in order to effect
such perfection.
10. All real estate taxes and governmental assessments which would be a lien
on the Mortgaged Property and that prior to the Cut-off Date have become
delinquent in respect of each related Mortgaged Property have been paid,
or an escrow of funds in an amount sufficient to cover such payments has
been established. For purposes of this representation and warranty, real
estate taxes and governmental assessments and installments thereof shall
not be considered delinquent until the date on which interest and/or
penalties would first be payable thereon.
11. To the Seller's actual knowledge as of the Cut-off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the Seller,
each related Mortgaged Property was free and clear of any material damage
(other than deferred maintenance for which escrows were established at
origination) that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and to the Seller's
actual knowledge as of the Cut-off Date there was no proceeding pending or
threatened for the total or partial condemnation of such Mortgaged
Property.
12. The lien of each related Mortgage as a first priority lien in the original
principal amount of such Mortgage Loan after all advances of principal (as
set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable without consent of the insurer and will inure to
the benefit of the Trustee as Mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally-recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; such policy contains
no material exclusions for, or affirmatively insures (except for any
Mortgaged Property located in a jurisdiction where such insurance is not
available) (a) access to a public road or (b) that there are no
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required under
each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, is in an amount (subject to a customary deductible)
equal to the lesser of (i) the replacement cost of improvements located on
such Mortgaged Property, or (ii) the initial principal balance of the
Mortgage Loan, and in any event, the amount necessary to prevent operation
of any co-insurance provisions; and, except if such Mortgaged Property is
operated as a mobile home park, is also covered by business interruption
or rental loss insurance, in an amount at least equal to 12 months of
operations of the related Mortgaged Property (or in the case of a
Mortgaged Property without any elevator, 6 months), all of which is was in
full force and effect with respect to each related Mortgaged Property;
and, as of the Cut-off Date, to the actual knowledge of the Seller, all
insurance coverage 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; all premiums
due and payable through the Closing Date have been paid; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller; and except for certain amounts not greater
than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar Mortgage Loan and
which are set forth in the related Mortgage, any insurance proceeds in
respect of a casualty loss, will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property with the
mortgagee having the right to hold and disburse the proceeds or (ii) the
reduction of the outstanding principal balance of the Mortgage Loan at the
holder's sole option, subject in either case to requirements with respect
to leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent institutional lenders for similar
loans. The Mortgaged Property is also covered by comprehensive general
liability insurance against claims for personal and bodily injury, death
or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders.
The insurance policies contain a standard mortgage clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee
to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so.
14. (A) Other than payments due but not yet 30 days or more delinquent, to the
Seller's actual knowledge, based upon due diligence customarily performed
with the servicing of comparable mortgage loans by prudent institutional
lenders, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note, and to the Seller's actual knowledge no event (other than payments
due but not yet delinquent) which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, provided,
however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration
that specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (10),
(15) and (19) of this Schedule II or in any paragraph of Schedule III or
IV, and (B) the Seller has not waived any material default, breach,
violation or event of acceleration under such Mortgage or Mortgage Note,
except for a written waiver contained in the related Mortgage File being
delivered to the Purchaser, and pursuant to the terms of the related
Mortgage or the related Mortgage Note, and other documents in the related
Mortgage File no person or party other than the holder of such Mortgage
Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. Except as noted below, as of the Closing 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.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. 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.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage, or any substantially similar successor provision).
Accordingly, such Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The Mortgage Loan documents with
respect to each Mortgage Loan do not allow such Mortgage Loan to be
defeased prior to two years after the Startup Date.
19. One or more environmental site assessments or updates thereof 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-months preceding the origination of the related
Mortgage Loan, 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 actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). All
environmental assessments or updates that were in the possession of the
Seller and that relate to a Mortgaged Property insured by an environmental
insurance policy have been delivered to or disclosed to the environmental
insurance carrier issuing such policy prior to the issuance of such
policy.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy or similar law affecting the right of
creditors and the application of principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-off Date, no Mortgagor is a debtor in, and no Mortgaged Property
is the subject of, any state or federal bankruptcy or insolvency
proceeding.
22. Each 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 or, other than the ARD Loans,
provide for negative amortization. The Seller holds no preferred equity
interest.
23. Subject to certain exceptions, which are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property, each
related Mortgage or loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of the Mortgage
or loan agreement, the related Mortgaged Property, or any controlling
interest in the related Mortgagor, is directly transferred or sold (other
than by reason of family and estate planning transfers and transfers of
less than a controlling interest in a mortgagor, or a substitution or
release of collateral within the parameters of paragraph (26) below), or
encumbered in connection with subordinate financing by a lien or security
interest against the related Mortgaged Property, other than any existing
permitted additional debt.
24. 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.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit
defeasance by means of substituting for the Mortgaged Property (or, in the
case of a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) U.S. Treasury Obligations sufficient to
pay the Mortgage Loans in accordance with their terms, (b) where a release
of the portion of the Mortgaged Property was contemplated at origination
and such portion was not considered material for purposes of underwriting
the Mortgage Loan, or (c) where release is conditional upon the
satisfaction of certain underwriting and legal requirements and the
payment of a release price that represents adequate consideration for such
Mortgaged Property, but in no event less than the related allocated loan
amount, the terms of the related Mortgage do not provide for release of
any portion of the Mortgaged Property from the lien of the Mortgage except
in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based on due diligence customary in the
industry, as of the date of origination of such Mortgage Loan and as of
the Cut-off Date, there are no violations of any applicable zoning
ordinances, building codes and land laws applicable to the Mortgaged
Property or the use and occupancy thereof which would have a material
adverse effect on the value, operation or net operating income of the
Mortgaged Property.
28. To the Seller's actual knowledge, after review of surveys and/or any
related title policy obtained in connection with the origination of each
Mortgage Loan only, and to the Seller's actual knowledge, as of the
Cut-off Date, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), 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) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material and adverse extent
(unless affirmatively covered by title insurance).
29. Except as noted below, 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 is an entity which has represented in
connection with the origination of the Mortgage Loan, and/or whose
organizational documents provide, that so long as the Mortgage Loan is
outstanding it will be a single-purpose entity. (For this purpose,
"single-purpose entity" shall mean a person, other than an individual,
which does not engage in any business unrelated to the related Mortgaged
Property and its financing, does not have any significant assets other
than those related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the related
Mortgage or the other documents in the Mortgage Loan File, and holds
itself out as being a legal entity, separate and apart from any other
person).
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property an adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's performance under the related Mortgage Loan documents or the
security intended to be provided by the Mortgage Loan documents or the
current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest contracted for complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury.
34. Except as noted below, the related Mortgage Note is not secured by any
collateral that secures a Mortgage Loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the Mortgagee maintains, flood insurance with
respect to such improvements and disclosed on the Mortgage Loan Schedule.
36. All escrow deposits and payments required pursuant to the Mortgage Loan
are in the possession, or under the control, of the Seller or its agent
and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property as operated on the
origination date, and, as of the Cut-off Date, the Seller has no actual
knowledge that the related Mortgagor, the related lessee, franchisor or
operator was not in possession of such licenses, permits and
authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller or the Seller's predecessor or
agent with respect to the Mortgage Loan have been in all respects legal
and have met customary industry standards.
39. Except for Mortgagors under Mortgage Loans secured by Ground Leases, the
related Mortgagor (or its affiliate) has title in the fee simple interest
in each related Mortgaged Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other
intentional misrepresentation. Furthermore, the Mortgage Loan documents
for each Mortgage Loan provide that the related Mortgagor shall be liable
to the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default, insurance proceeds
or condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
person is entitled to occupy, use or possess all or any portion of the
real property subject to the related Mortgage and the exceptions set forth
in paragraph (5) of this Schedule II.
42. With respect to such Mortgage Loan, any prepayment premium constitutes a
"customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date (or, in the case of the ED Loan, the related
Startup Day), (2) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note and (3) only to facilitate the disposition of the
Mortgaged Property and not as a part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages. In
addition, if such Mortgage contains such a defeasance provision, it
provides (or otherwise contains provisions pursuant to which the holder
can require) that the loan be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan and that an opinion be
provided to the effect that such holder has a first priority perfected
security interest in the defeasance collateral. The related Mortgage Loan
documents enable the lender to charge the expenses associated with
permitting a defeasance to the Mortgagor (including rating agencies' fees,
accounting fees and attorneys' fees), and must provide for (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) a letter from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. No Mortgage Loan, other than a Mortgage Loan with an Anticipated Repayment
Date, provides for the negative amortization of interest. Neither the
Seller nor any affiliate thereof has any obligation to make any capital
contributions to the Mortgagor under the Mortgage Loan.
46. No fraud with respect to such Mortgage Loan has taken place on the part of
the Seller or, to Seller's actual knowledge, on the part of any
originator, in connection with the origination of such Mortgage Loan.
47. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of the Mortgage Loan, which appraisal is signed by an
appraiser, who, to the Seller's actual knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any loan
made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; the appraisal satisfies
the requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was originated.
48. To the Seller's knowledge based on due diligence customary for prudent
commercial lenders: (i) the Mortgaged Property is located on or adjacent
to a dedicated road or has access to an irrevocable easement permitting
ingress and egress, (ii) the Mortgaged Property is served by public
utilities, water and sewer (or septic facilities), and (iii) the Mortgaged
Property constitutes one or more separate tax parcels (or will constitute
separate tax parcels when the next tax maps are issued) or is subject to
an endorsement under the related title insurance policy insuring for
losses arising from any claim that the Mortgaged Property is not one or
more separate tax parcels.
49. Each Mortgage requires the Mortgagor to provide the holder with certain
financial information at the times required under the related Mortgage
Loan documents.
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
SCHEDULE II
REPRESENTATION AND WARRANTY NO. 8
--------------------------------------------------------------------------------
Loan No. Exception
--------------------------------------------------------------------------------
825999525 Rite Aid Grayling Each of these Mortgage Loans is
-------------------------------------- cross-collateralized and
825999527 Rite Oscoda cross-defaulted with its related
-------------------------------------- Companion Loan which is not included in
825999528 Rite Aid St Xxxx Xxxxxxxxxx the Mortgage Pool. In addition, each
Companion Loan is secured by the same
Mortgaged Property and the same
Mortgage securing its related Mortgage
Loan.
--------------------------------------------------------------------------------
REPRESENTATION AND WARRANTY NO. 15
--------------------------------------------------------------------------------
Loan No. Exception
--------------------------------------------------------------------------------
265950667 Amberwood Apartments Since the date of origination of such
Mortgage Loan, it has been 30 days or
more past due in respect of a
Scheduled Payment.
--------------------------------------------------------------------------------
REPRESENTATION AND WARRANTY NO. 29
--------------------------------------------------------------------------------
Loan No. Exception
--------------------------------------------------------------------------------
502700203 Crossroads Technology Park The Borrower is not a single purpose
entity; however, the Borrower has
covenanted to become a single purpose
entity within 120 days of the closing
of its Mortgage Loan.
--------------------------------------------------------------------------------
REPRESENTATION AND WARRANTY NO. 34
--------------------------------------------------------------------------------
Loan No. Exception
--------------------------------------------------------------------------------
825999525 Rite Aid Grayling Each of these Mortgage Loans is
--------------------------------------- cross-collateralized and
825999527 Rite Oscoda cross-defaulted with its related
--------------------------------------- Companion Loan which is not included
825999528 Rite Aid St Xxxx Xxxxxxxxxx in the Mortgage Pool.
--------------------------------------- In addition, each Companion Loan is
secured by the same Mortgaged Property
and the same Mortgage securing its
related Mortgage Loan.
--------------------------------------------------------------------------------
SCHEDULE III
GROUND LEASE REPRESENTATIONS AND WARRANTIES
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded 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. To the Seller's actual knowledge, there has been no material change
in the terms of the Ground Lease since its recordation except by written
instrument delivered as part of the Mortgage File.
2. 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 Mortgagee under the leasehold estate and its assigns without the
consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the Mortgagee and that any such
action without such consent is not binding on the Mortgagee, its
successors or assigns, except termination or cancellation if an event of
default occurs under the Ground Lease and notice is provided to the
Mortgagee and such default is curable by the Mortgagee as provided in the
Ground Lease, but remains uncured beyond the applicable cure period.
4. 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.
5. The Ground Lease or ancillary agreement between the lessor and the lessee
requires the lessor to give notice of any default by the lessee to the
Mortgagee. The Ground Lease or ancillary agreement further provides that
no notice given is effective against the Mortgagee unless a copy has been
given to the Mortgagee in a manner described in the Ground Lease or
ancillary agreement.
6. The Ground Lease (a) is not subject to any liens or encumbrances superior
to, or of equal priority with, the Mortgage, subject, however, to only the
Title Exceptions or (b) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest
in the Mortgaged Property is subject.
7. 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, including such time as is necessary to gain possession
of the Mortgaged Property, by foreclosure or otherwise, if possession is
necessary in order to effect such cure.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the Mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date, or, if not 20 years, at least 10
years beyond such Stated Maturity Date.
9. 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 award (other than
in respect of a total or substantially total loss or taking) 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 repair or restoration
progresses, or to the payment or defeasance of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
in cases where a different allocation would not be viewed as commercially
unreasonable by any institutional investor, taking into account the
relative duration of the Ground Lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The Ground Lease does not impose any restrictions on subletting that would
be viewed as commercially unreasonable by a prudent commercial lender.
11. The ground lessor under such Ground Lease is required to enter into a new
lease with the holder of the Mortgage Loan upon termination of the Ground
Lease for any reason, including the rejection of the Ground Lease in
bankruptcy.
SCHEDULE IV
CREDIT LEASE LOAN REPRESENTATIONS AND WARRANTIES
1. The base lease payments due under the related Credit Lease, together with
any escrow payments held by the Seller or its designee, are equal to or
greater than the payments due with respect to the related Mortgage Loan.
2. The Mortgagor does not have any material monetary obligations under the
related Credit Lease, and every material monetary obligation associated
with managing, owning, developing and operating the leased property,
including, but not limited to, the costs associated with utilities, taxes,
insurance, maintenance and repairs is an obligation of the related Tenant.
3. The Mortgagor does not have any nonmonetary obligations under the related
Credit Lease, except for the delivery of possession of the leased
property.
4. The related Tenant cannot terminate such Credit Lease for any reason prior
to the payment in full of: (a) the principal balance of the related
Mortgage Loan; (b) all accrued and unpaid interest on such Mortgage Loan;
and (c) any other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment date, except for a material
default by the related Mortgagor under the Credit Lease or due to a
casualty or condemnation event, in which case, a Lease Enhancement Policy
insures against such risk.
5. In the event the related Tenant assigns or sublets the related leased
property, such Tenant (and if applicable, the related guarantor) remains
obligated under the related Credit Lease.
6. Based upon the customary due diligence performed by the originator at
origination, each property related to a Credit Lease Loan is one or more
separate tax lots, except properties concerning which adequate funds have
been escrowed to cover taxes due on the entire tax lot or lots.
7. The related Tenant has agreed to indemnify the Mortgagor from any claims
of any nature (a) to which the Mortgagor is subject because of such
Mortgagor's estate in the leased property (except to the extent caused by
the act or omission of the Mortgagor or its agents or employees), or (b)
arising from (i) injury to or death of any person or damage to or loss of
property on the leased property or connected with the use, condition or
occupancy of the leased property, (ii) Tenant's violation of the related
Credit Lease, or (iii) any act or omission of the Tenant.
8. The related Tenant has agreed to indemnify the Mortgagor from any claims
of any nature arising as a result of any hazardous material affecting the
leased property and due to such Tenant's use of the leased property.
9. In connection with Credit Lease Loans with respect to which a Guaranty
exists, the related guarantor guarantees the payment due under the related
Credit Lease and such Guaranty, on its face, contains no conditions to
such payment.
10. Except for the Credit Lease Loans which have residual value insurance,
each Credit Lease Loan fully amortizes over the term of the loan, and
there is no "balloon" payment due under such Credit Lease Loan at
maturity.
11. Except as noted below, no Tenant under a Credit Lease Loan may exercise
any termination right or offset or set-off right which shall be binding
upon the related mortgagee without providing prior written notice of same
to such mortgagee.
12. Each Tenant under each Credit Lease Loan is required to make all rental
payments due under the applicable Credit Lease directly to a lock-box
being maintained by or on behalf of the mortgagee.
13. No material modification or amendment of any Credit Lease Loan shall be
binding upon the related mortgagee without such mortgagee's prior written
notice consent to such material modification or amendment, which consent
may not be unreasonably withheld.
14. Each property related to a Credit Lease Loan has or will have a permanent
certificate of occupancy, and the related Tenant thereunder has commenced
the payment of rent due under the respective Credit Lease in accordance
with its terms.
15. Each Tenant has delivered a subordination, non-disturbance and attornment
agreement pursuant to which the respective Tenant has agreed in the event
the related mortgagee succeeds to the interest of the Mortgagor under the
Credit Lease by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, the Tenant will attorn to and recognize the mortgagee as its
landlord under the Credit Lease for the remainder of the term of the
Credit Lease.
16. To the Seller's knowledge, the property related to each Credit Lease Loan
is not subject to any other lease other than the related Credit Lease or
any ground lease pursuant to which the related Mortgagor has acquired its
interest in the respective property, no Person has any possessory interest
in, or right to occupy, the subject property except under and pursuant to
any such Credit Lease or ground lease and the related Tenant under each
Credit Lease is in occupancy of the demised premises.
17. To the Seller's knowledge, in reliance on a Tenant estoppel certificate
and representations made by the Tenant under the Credit Lease or
representations made by the related Mortgagor under the Mortgage Loan
documents, as of the date of origination of each Credit Lease Loan (1)
each Credit Lease was in full force and effect, and no default by the
related Mortgagor or any Tenant had occurred under the Credit Lease, nor
was there any existing condition which, but for the passage of time or the
giving of notice, or both, would result in a default under the terms of
the Credit Lease, and (2) each Credit Lease has a term ending on or after
the maturity date (or anticipated repayment date) of the related AB
Mortgage Loan or CML.
18. Each Tenant has delivered, in connection with the origination of the
related Mortgage Loan, an estoppel verifying the rents and terms of the
related lease, acknowledging that no rent has been paid in advance, and an
estoppel and/or subordination and nondisturbance agreement agreeing to
attorn to the holder of the Mortgage Loan.
19. A Lease Enhancement Policy (a "Policy") has been obtained for each Credit
Lease Loan and with respect to each Policy:
(A) Each Credit Lease Loan in connection with which the related Credit
Lease may be terminated upon the occurrence of a casualty or
condemnation has a noncancellable Lease Enhancement Policy from
Chubb Custom Insurance Company. The Chubb Lease Enhancement Policy
in effect for each related Credit Lease Loan is the "7/98" version.
(B) Payment under each Policy will be made at least within 15 days of
notification of a claim.
(C) The premium for each Policy has been paid in full as of the Policy
effective date for the related Policy and the Policy cannot be
terminated prior to the termination date.
(D) The effective date for each Policy with respect to each Credit Lease
Loan is on or prior to the Closing Date.
(E) The termination date for each Policy with respect to each Credit
Lease Loan is the date upon which the outstanding principal balance
of the Credit Lease Loan is reduced to zero.
(F) The insured amount for each such Policy is what the applicable
provider will pay to the loss payee upon notification of a claim and
is at least equal to the outstanding principal balance of the
related Mortgage Note at the time the claim is made plus all accrued
interest.
(G) The Policy cannot be amended without the prior written consent of
the Trustee.
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
SCHEDULE IV
REPRESENTATION AND WARRANTY NO. 11
--------------------------------------------------------------------------------
Loan No. Exception
--------------------------------------------------------------------------------
825999525 Rite Aid Grayling Limited offset rights exist.
--------------------------------------
825999527 Rite Oscoda
--------------------------------------
825999528 Rite Aid St Xxxx Xxxxxxxxxx
--------------------------------------
825999802 Rite Aid Airmax Gratiot 15
--------------------------------------
835300003 Rite Aid Clinton Township
--------------------------------------
825999655 Rite Aid Xxxxx City M53
--------------------------------------
825114191 Rite Aid Northpointe
Bay City
--------------------------------------
835300002 Rite Aid Cotton Venture
--------------------------------------------------------------------------------
EXHIBIT A-1
FORM OF CERTIFICATE OF [ASSISTANT] SECRETARY OF THE SELLER
NOVEMBER 16, 2001
I, ____________, hereby certify that I am the duly elected
[Assistant] Secretary of First Union National Bank (the "Bank"), and in such
capacity, I hereby further certify as follows:
1. The Bank is a national bank association duly organized and in
good standing under the laws of the United States of America;
2. Attached hereto as EXHIBIT A is a true and correct copy of the
Bylaws of the Bank, as in effect on the date hereof;
3. The resolutions attached hereto as EXHIBIT B were adopted by
the unanimous written consent of the executive committee of
the board of directors of the Bank as of [_________];
4. Attached hereto as EXHIBIT C is a certificate of the
Comptroller of the Currency dated [________], with respect to
the good standing of the Bank; and
5. Each person who, as an officer or representative of the Bank,
signed the Agreement, or any other document or certificate
delivered on or before the date hereof in connection with the
transactions contemplated thereby was, at the respective times
of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or
representative, and the signature of each such person
appearing on each such document is their genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
By:_______________________________________
Name:
Title:
I, [name], [title], hereby certify that ____________________________
is duly elected or appointed, as the case may be, qualified and acting
_____________ of [____________________] and that the signature appearing above
is such officer's genuine signatures.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date
first above written.
By:_______________________________________
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE OF THE SELLER
NOVEMBER 16, 2001
Certificate of First Union National Bank
In connection with the execution and delivery by First Union
National Bank (the "Bank") of, and the consummation of the various transactions
contemplated by that certain Mortgage Loan Purchase and Sale agreement, dated as
of November 11, 2001 (the "Agreement"), between Banc of America Commercial
Mortgage Inc. ("BACM"), as purchaser and the Bank, as seller, the Bank hereby
certifies that (i) the representations and warranties of the Bank in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Bank
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof. Capitalized terms not otherwise
defined herein have the meanings assigned to them in the Agreement.
Certified as of date first above written.
FIRST UNION NATIONAL BANK
By:_______________________________________
Name:
Title:
