EXHIBIT 99.1
Bank of America Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of September 15, 2005, between Bank of America, N.A., as
seller (the "Seller" or "Bank of America") and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans and (ii) certain mortgage loans transferred by Bear Xxxxxxx
Commercial Mortgage, Inc. ("BSCMI") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between BSCMI and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Fitch, Inc. and/or Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of September 1, 2005 (the "Pooling and Servicing Agreement"), among
BACM, as depositor, Bank of America, N.A., as master servicer (the "Master
Servicer"), LNR Partners, Inc., as special servicer (the "Special Servicer"),
and Xxxxx Fargo Bank, N.A., as trustee (in such capacity, the "Trustee"), and as
REMIC administrator. Capitalized terms used but not otherwise defined herein
have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("Banc of America"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"),
Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs") and Greenwich Capital Markets, Inc.
("Greenwich") (collectively, the "Underwriters") pursuant to an underwriting
agreement, dated as of September 15, 2005 (the "Underwriting Agreement"). BACM
intends to sell certain of the remaining classes of Certificates (the
"Non-Registered Certificates") to Banc of America and Bear Xxxxxxx, as initial
purchasers (together the "Initial Purchasers"), pursuant to a certificate
purchase agreement dated as of September 15, 2005 (the "Certificate Purchase
Agreement"), among BACM, Banc of America and Bear Xxxxxxx. The Registered
Certificates are more fully described in the prospectus dated September 15, 2005
(the "Basic Prospectus"), and the supplement to the Basic Prospectus dated
September 15, 2005 (the "Prospectus Supplement"; and, together with the Basic
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 September 15, 2005 (the "Memorandum"), as it
may be amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of September 15, 2005 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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 $1,212,447,920.10, which amount includes interest accrued on the
Mortgage Loans on or after the Cut-off Date and which amount shall be payable on
September 28, 2005 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or, if so directed by the Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"), the Mortgage
File with respect to each of the Mortgage Loans; provided that the Purchaser
hereby directs the Seller to prepare and the Seller shall prepare or cause to be
prepared (or permit the Purchaser to prepare) with respect to the Mortgage
Loans, the assignments of Mortgage, assignments of Assignment of Leases and UCC
financing statements on Form UCC-2 or UCC-3, as applicable, from the Seller in
favor of the Trustee (in such capacity) or in blank. The Seller shall at its
expense, within 45 days after the Closing Date or, in the case of a Replacement
Mortgage Loan, after the related date of substitution, unless recording/filing
information is not available by such time for assignments solely due to
recorder's office delay, in which case such submission shall be made promptly
after such information does become available from the recorder's office, submit
or cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment referred to in the immediately preceding
sentence, unless recording/filing information is not available by such time for
assignments solely due to recorder's office delay, in which case such submission
shall be made promptly after such information does become available from the
recorder's office. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall in each such case promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and thereafter shall in each such case, at its own expense, submit the
substitute or corrected documents or cause such to be submitted for recording or
filing, as appropriate.
(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) asset summaries delivered to the Rating Agencies, originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and originals or copies of all
documents, certificates, letters of credit, environmental insurance policies and
related endorsements, and opinions in the possession or under the control 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 are 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 that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(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 so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, 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. If the Seller cannot or does not so deliver, or cause to
be delivered, as to any Mortgage Loan, the original of any of the documents
and/or instruments referred to in clauses (iv) and (v) of the definition of
"Mortgage File" in the Pooling and Servicing Agreement, because such document or
instrument has been delivered for recording or filing, as the case may be, 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. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan.
(g) [Reserved].
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage 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 hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the Seller's knowledge, threatened
against the Seller which if determined adversely to the Seller would
prohibit the Seller from entering into this Agreement, or in the Seller's
good faith and reasonable judgment, would be likely to materially and
adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and the terms of the Pooling and Servicing
Agreement; provided that 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 Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, 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 three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan basis. The Seller shall have no obligation to monitor the Mortgage
Loans regarding the existence of a Material Breach or Material Document Defect,
but if the Seller discovers a Material Breach or Material Document Defect with
respect to a Mortgage Loan, it will notify the Purchaser. For purposes of
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.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan or Mortgage Loan
in the manner described above unless, in the case of a Material Breach or
Material Document Defect, both of the following conditions would be satisfied if
the Seller were to repurchase or substitute for only the affected
Crossed-Collateralized Mortgage Loans or affected Mortgaged Properties as to
which a Material Breach or Material Document Defect had occurred without regard
to this paragraph: (i) the debt service coverage ratio for any remaining
Cross-Collateralized Mortgage Loans or Mortgaged Properties for the four
calendar quarters immediately preceding the repurchase or substitution is not
less than the greater of (a) the debt service coverage ratio immediately prior
to the repurchase, and (b) 1.25x and (ii) the loan-to-value ratio for any
remaining Crossed-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, and (b) 75%. In the event that both of the conditions set forth in
the preceding sentence would be satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the related Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans or Mortgaged Property, the Seller
and the Purchaser agree to uncross the repurchased Cross-Collateralized Mortgage
Loan or affected property; provided the Purchaser has received a tax opinion
that uncrossing the repurchased Cross-Collateralized Mortgage Loan or Mortgaged
Property will not adversely affect the status of any of REMIC I or REMIC II as a
REMIC under the Code.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
The Seller's obligation to cure any Material Breach or Material Document
Defect or repurchase or substitute any affected Mortgage Loan or Mortgaged
Property pursuant to this Section 4(c) constitute the sole remedies available to
the Purchaser in connection with a breach of any of the Seller's representations
and warranties contained in Section 4(b) and it is acknowledged and agreed that
those representations and warranties are being made for risk allocation purposes
only.
It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to this Section 4(c) that the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto ), to the extent that such
ownership interest was transferred to the Purchaser hereunder.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
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 Deloitte & Touche (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) [Reserved];
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers, and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memorandum
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memorandum stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, compared the results
of their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx, Esq., Assistant
General Counsel, at Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
20th Floor, NC1-007-20-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to Xxxxx X.
XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202) or to such other addresses as may
hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN
TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW, PURSUANT TO WHICH
THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK AS THE
GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN
NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
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 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
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 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
SECTION 23. Barceloneta Loan.
(a) With respect to Loan No. 58893 on the Mortgage Loan Schedule (the
"Barceloneta Loan"), the Seller hereby agrees to indemnify the Trust for any and
all costs and expenses incurred by the Trust, including interest on Advances,
Special Servicing Fees, Additional Trust Fund Expenses and the costs and
expenses of the Special Servicer in connection with, or arising out of the
enactment after the Closing Date of, any law of the Commonwealth of Puerto Rico
or any political subdivision thereof changing in any way the laws relating to
the taxation of mortgages or security agreements or debts secured by mortgages
or security agreements or the interest of a lender or secured party in the
property covered thereby or interest charged under a loan or requiring any
withholding of taxes by a borrower in respect of a loan, which, in each case,
applies to the Barceloneta Loan (any such enacted legislation, the "Puerto Rico
Tax Legislation"); provided that the foregoing indemnification shall not apply
to Special Servicing Fees and other costs and expenses incurred by the Special
Servicer that (i) are incurred as a result of the failure of the related
mortgagor under the Barceloneta Loan to make certain "gross-up" payments
pursuant to Section 17.4 of the Barceloneta Loan loan agreement (such payments,
the "Barceloneta Gross-Up Payments") and (ii) are incurred prior to the date
that the failure of the related mortgagor to make such Barceloneta Gross-Up
Payment shall constitute a Servicing Transfer Event with respect to the
Barceloneta Loan in accordance with clause (iii) of the definition of "Servicing
Transfer Event."
(b) As specified in Section 3.31(a) of the Pooling and Servicing
Agreement, the Seller will have the option, exercisable in its sole discretion,
to make Barceloneta Gross-Up Payments that are required to be made by the
mortgagor under the terms of the loan agreement for the Barceloneta Loan, to the
extent the mortgagor fails to make such payments. As specified in Section
3.31(b) of the Pooling and Servicing Agreement, the Seller will have the option,
exercisable in its sole discretion, to purchase the Barceloneta Loan upon the
enactment of the Puerto Rico Legislation, so long as an event of default under
the Barceloneta Loan has occurred and is continuing.
The Seller further represents that as of the Closing Date and as of any
date thereafter on which the Barceloneta Loan is included as part of the Trust
Fund (i) the obligation of the mortgagor under the Barceloneta Loan to make the
Barceloneta Gross-Up Payments and (ii) the ability of the mortgagee under such
loan agreement to accelerate the maturity of the Barceloneta Loan as a result of
the mortgagor's failure to make any Barceloneta Gross-Up Payments required by
such loan agreement (the preceding clauses (i) and (ii) are hereinafter referred
to collectively as the "Barceloneta Representation Remedies"), in each case, are
enforceable in accordance with their terms under such loan agreement, except as
such enforcement may be limited by (a) anti-deficiency laws or bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, and by
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) (the preceding clauses (a) and
(b) are hereinafter referred to collectively as the "Barceloneta Representation
Qualifications"); provided that the Barceloneta Representation Qualifications
shall not apply to the foregoing representation regarding the enforceability of
the Barceloneta Representation Remedies to the extent that the enforceability of
such remedies is prohibited solely due to (1) the Puerto Rico Tax Legislation
expressly prohibiting the exercise of such remedies or (2) a final,
non-appealable determination by a court of competent jurisdiction that the
Puerto Rico Tax Legislation prohibits the exercise of such remedies.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
BANK OF AMERICA, N.A.
By: /s/
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL
MORTGAGE INC.
By: /s/
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Loan Seller Property Name
-------- ----------- --------------- ------------------------------------------------------------
1 58851 Bank of America Xxxxxxx Xxxx Xxxxx
0 00000 Xxxx xx Xxxxxxx Sotheby's Building
4 59001 Bank of America Xxxxxxxxx Xxxx
0 00000 Xxxx xx Xxxxxxx Xxx Xxxxxxx Xxxxxx
0 00000 Xxxx xx Xxxxxxx The Terrace Apartments
7 58923 Bank of America NYU Housing - 000 Xxxx 00xx Xxxxxx
10 58893 Bank of America Barceloneta Outlet Center
12 58825 Bank of America Capistrano I Office Buildings
13 58972 Bank of America Town Center
14 58974 Bank of America Xxxxxxx Xxxxx X & XX
00 00000 Bank of America Old Mill Corporate Center III
16 14943 Bank of America Park Place Shopping Center
17 58895 Bank of America The Club at Copperleaf
18 58990 Bank of America Skyline Terrace Apartments
19 13161 Bank of America Newport Cove Apartments
20 58767 Bank of America Steeplechase Apartments
21 59038 Bank of America Fontenelle Hills Apartments
24 59068 Bank of America Xxxx Xxxxxx Xxxxxx Xxxx
00 00000 Bank of America Valley View Commerce Center
29 58986 Bank of America Prairie Stone Commons
30 58823 Bank of America Anaheim Hills Business Center
34 13071 Bank of America Highpoint Center
36 59099 Bank of America Shops at Metropolis
37 58975 Bank of America Northpark Plaza I & II
38 13828 Bank of America Friar's Branch Crossing
39 14024 Bank of America Xxxxxxx Xxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx 00 Xxxxxxxx Xxxxx
41 59073 Xxxx xx Xxxxxxx Xxx Xxx Xxxx
00 00000 Bank of America Woodmeade South Apartments
43 58874 Bank of America Pinebrook I & II
44.1 59104 Bank of America I-40 West Amarillo Self Storage Portfolio - I-40 Xxxx
44.2 59104 Bank of America I-40 West Amarillo Self Storage Portfolio - Britain/Virginia
44.3 59104 Bank of America X-00 Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxxx - X-00 Xxxx Annex
44 59104 Bank of America I-40 West Amarillo Self Storage Portfolio (Roll Up)
46 59114 Bank of America Big Lots Center-In Line Shops
47 59112 Bank of America Big Lots Center
48 59113 Bank of America Big Lots- Kragen Pad
Subtotal Crossed Loans
49 14192 Bank of America Xxxxxxx of Livonia (2005)
50 13396 Bank of America Puyallup Executive Park
51 59072 Bank of America Westchase Technology Center
52 13069 Bank of America Xxxxxxxx Xxxxxx X & Xxxx Xxxxxx
00 00000 Bank of America Wedgewood IV
54 58909 Bank of America Sioux Falls Corporate Centre I & II
56 11179 Bank of America Xxxxxxx Xxxxx
00 00000 Xxxx xx Xxxxxxx Xxxx Xxxxx
00 00000 Bank of America Federal Express-Torrance
59 14398 Bank of America Northgate Center - Orlando
60 14286 Bank of America Xxxxxxx Tampa
61.1 13695 Bank of America The Village on Samish
61.2 00000 Xxxx xx Xxxxxxx University Village
61.3 13695 Bank of America Xxxx Xxxx Xxx
00 00000 Bank of America McDonald Retail Portfolio (Roll Up)
62 13401 Bank of America Gladiolus Self Storage
63 11386 Bank of America Flamingo Commerce Center
64 58841 Bank of America Fleur De Lis Apartments
65 14205 Bank of America IGC Park - Phase II
66 59020 Bank of America Margate on Cone Apartments
67 14328 Bank of America Condor Garden Apartments
68 14014 Bank of America Port Orange Self Storage
69 58843 Bank of America Piccadilly Apartments
70 13277 Bank of America Xxxxxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Redbud Commons
72 59067 Bank of America Orangethorpe Promenade
73 58867 Bank of America Fullerton Self Storage
74 59004 Bank of America Olivenhain Self Storage
75 59057 Bank of America 000-000 Xxxx Xxxxxxxxxx Xxxx
76 58910 Bank of America Seligman Best Buy
77 13983 Bank of America Holiday Inn Exp - Concord
78 14457 Bank of America Xxxxxxx Xxxx 00 Xxxxxxxx
00 00000 Xxxx of America Park Row East Apartments
80 14203 Bank of America IGC Park - Phase I
81 14334 Bank of America Xxxxxxxxx Xxxxxxx Xxxxxxxxxx
00 00000 Xxxx xx Xxxxxxx Heritage Place Apartments
83 59093 Xxxx xx Xxxxxxx Xxxxxx Xxxx Xxxxx
00 00000 Bank of America Walgreens - Havana Street
86.1 12710 Bank of America 000 X Xxxxxxxxxx Xxxx
00.0 00000 Xxxx xx Xxxxxxx 000 Xxxxxxxxxx
86.3 12710 Bank of America 000 X Xxxxxxxxxx
00 00000 Xxxx xx Xxxxxxx Philomeno & Xxxxxxxx Portfolio (Roll Up)
87 59060 Bank of America Xxxxx Xxxx Xxxxxxxxx
00 00000 Xxxx xx Xxxxxxx Premiere Self Storage
89.1 14151 Bank of America Maxi Space Storage 2205 70th
89.2 14151 Bank of America Maxi Space Storage 109th
89.3 14151 Bank of America Maxi Space Storage 2415 70th
89 14151 Bank of America Maxi Space Storage Portfolio (Roll Up)
90 13014 Bank of America Burlington Retail Center
91 8233 Bank of America Lake Xxxxxxx XXX
00 00000 Xxxx of America Lake Xxxxxxx Station 3
93 13857 Bank of America Premier Club Apts
94 13761 Bank of America CVS - North Sheffield
95 13135 Xxxx xx Xxxxxxx Xxxxxxxxx Xxxxx
00 00000 Bank of America Lakeshore Colonial Apartments
97 12049 Bank of America Woodcrest Apartments in Burien
98 59046 Bank of America AAAA Self Storage Facility
99 58929 Bank of America Wal-Mart Pad Sites-Seagoville
100 58860 Bank of America Wal-Mart Pad Sites-Mansfield
Subtotal Crossed Loans
101 14220 Bank of America Southgate Shopping Center (Yakima, WA)
102 13154 Bank of America SUSA Alpharetta
103 59107 Bank of America CVS - Lake Worth
105 12949 Bank of America Parkway Commons - Horizon
106 13906 Bank of America South 75 Center
107 14057 Bank of America Xxxxxx Xxxxxx Xxxxx
000 00000 Bank of America Xxxxxxxx Xxxxxx Xxxx Xxxx
000 00000 Bank of America Packwood Building J
110 59013 Bank of America Virginia Center Self Storage
111 13911 Bank of America AAA Storage City
112 13127 Bank of America South Gravers Office
113 14412 Bank of America Parkwood Lane MHC
114 12881 Bank of America Parkview Apts
115 13667 Bank of America Fort Mohave Storage
116 00000 Xxxx xx Xxxxxxx Xxxxxxxx Xxxx Xxxxxxx MHC
117 14592 Bank of America Thedacare Xxxxxxx Xxxxxx Xxxxxxxx
000 00000 Xxxx xx Xxxxxxx Camas Mini Storage
119 59092 Bank of America 0000 Xxxxxxx Xxxxxx
120 13194 Bank of America Parkview Manor Apartments
121 13671 Bank of America Platinum Storage
122 14120 Bank of America Quinault Professional Center
124 59058 Bank of America 0000 X. Xxxxxxxx
125 13455 Bank of America Des Moines Way Self Storage
126 13144 Bank of America Tyler Street Self Storage
127 13148 Bank of America Addison Lockers
128 13639 Bank of America Xxxx Medical Bldg
-------- ----------- --------------- ------------------------------------------------------------
Total
(I) PR stands for the Commonwealth of Puerto Rico.
Sequence
Number Street Address
-------- --------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxxxxxxxx
3 1334 Xxxx Xxxxxx
0 0000 Xxxxxxxxxx Xxxxxxxxxx
5 000 Xxxxx Xxxxxxxx Xxxxxx
6 00000 Xxxxx Xxxxx
7 000 Xxxx 00xx Xxxxxx
10 1 Prime Outlets Boulevard
12 27122-27136 Xxxxx Xxxxxx
00 00 Xxxxx Xxxx Xxxxxx
14 0000-0000 X. Xxxxxxx Xxxxxx
15 6350 South 3000 Xxxx
00 0000 Xxxxx Xxxx
17 14811 Xxxx Xxxx
00 000 Xxxxxxxx Xxxxxxx
19 0000 Xxxxxxx Xxxxxx
20 0000 Xxxxx Xxxxx Xxxxx
21 000 Xxxxxx Xxxxx
24 1616 and 0000 Xxxxx Xxxxxxxxxx Xxxx
26 14515-14565 Valley View Avenue
29 5401 and 0000 Xxxxxxxx Xxxx
30 0000-0000 X. Xx Xxxxx Xxxxxx
34 000 X. Xxxxxxx Xxxxxx
36 000 Xxxxxxxxx Xxxxxx
37 10335-10355 Federal Blvd
38 0000 Xxxxxxxxxxx Xxxx
39 0000 Xxxx Xxxxxx
40 25 Xxxxxxxx Drive
00 0000-0000 American Xxxxxxx Xxxxx
00 000 Xxxxxxx Xxxxx
43 2550 & 0000 Xxxxxxxxxx Xxxxxx
44.1 0000 Xxxxxx Xxxxxxxxx
44.2 0000 Xxxxxxx Xxxxx
44.3 0000 Xxxxxxxx Xxxxxxxxx
44 Various
46 000-000 Xxxxxx xx Xxxxxxxx
00 000 Xxxxxx xx Estrella
48 400 Camino de Xxxxxxxx
00 00000 Xxxxxxx Xxxxxx
50 929 & 0000 Xxxx Xxxx Xxxxxx
51 00000 Xxxxxxxx Xxxxxx
52 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx and 000 Xxxxxxxx Xxxxx
53 0000 Xxxxxxxx Xxx
54 0000 X. Xxxxxx Xxxxxx & 0000-0000 X. 00xx Xxxxxx; 0000 X. Xxxxxx Xxxxxx & 0000-0000 X. 00xx Xxxxxx
56 2808, 2824, 2830 & 0000 Xxxx Xxxxxx Xxxxxx Xxxx
57 000 Xxxxxxxxx Xxxxxx
58 00000 Xxxxxxxx Xxx.
59 0000-0000 Xxxxxxxxx Xxxxx and 0000 Xxxxx Xxxxx
60 17301 Xxxx Xxxxxxxx Drive
61.1 102 & 000 Xxxxx Xxxxxx Xxx
61.2 0000 XX 00xx Xxxxxx
61.3 0000 Xxxx Xxxx Xxx XX
61 Various
62 11200 Xxxxxxxxx Xxxxx
00 00000 and 00000 Xxxxxxx Xxxxxxx
64 0000 X. Xxxxxxx Xxxxxx
65 00000 X. Xxxx Xxxxxx
66 900 A East Cone Blvd.
00 0000-0000 Xxxx Xxxx
00 0000 Xxxx Xxxx
69 682 Irolo Street
70 0000 Xxxxxx Xxxxxx
71 0000 X. Xxx Xxxx Xxxx
72 2350 -0000 Xxxxxxxxxxxx Xxxxxx & 0000 Xxxxxxxxx Xxxxxx
73 0000 Xxxxxxxxx Xxxxxxxxx
74 1605 Xxxxxxxxxx Xxxx
00 000-000 Xxxx Xxxxxxxxxx Road
76 0000 Xxxxxx Xxxxxx
77 0000 Xxxxxxx Xxxx XX
78 15810 Park Ten Place
79 3201 East Park Row Drive
80 00000 X. Xxxx Xxxxxx
81 0000 Xxxxxxx Xxxxx
82 000 Xxxxxxxxxxx Xxxxx
83 0 Xxxxxxxxx Xxxxx
85 00000 Xxxx Xxxxxxx Xxx
86.1 000 Xxxx Xxxxxxxxxx Xxxx
00.0 000 Xxxx Xxxxxxxxxx Pike
86.3 000 X Xxxxxxxxxx Xxxx
86 Various
87 3500 Finfeather
88 00000 Xxxxxx Xxxx
89.1 0000-0000 00xx Xxx X.
89.2 0000 000xx Xxxxxx X.
89.3 0000 00xx Xxx X.
89 Various
90 0000-0000 Xxxxx Xxxxxxxxxx Xxxx.
91 14260 000xx Xxxxxx
00 00 00xx Xxxxx XX
93 5100 Xxxxxxxxx Xxxx
00 0000 Xxxxx Xxxxxxxxx
95 9050 Executive Xxxx Xxxxx
00 0000 Xxxx Xxxx Xxxxxx
97 15800 0xx Xxxxxx Xxxxx
00 0000 Xxxxxxx Xxxxx Xxxx
99 000 Xxxxx Xxxxxxx 175
100 2881 & 0000 Xxxxxxx Xxxx
101 1006 - 0000 X 0xx Xxxxxx
102 855 North Xxxx Xxxxxx
000 0000 Xxxx Xxxxx Xxxx
105 000 Xxxx Xxxxxxxxxxx Xxxxxxxxxx
000 000-000 Business Center Drive
107 3725 Xxxxx Xxxx
000 0000-0000 Xxxxxxxx Bridge Road
000 0000-0000 Xxxxxx Xxxxxxxxx
000 00000 Xxxxx Xxxxx Xxxx
111 3715 Argent Blvd
112 000 Xxxxx Xxxxxxx Xxxx
113 2611 South 000xx Xxxxxx
000 000 X. Xxxxxxxxxx Xx.
115 0000 Xxxxxxx Xxxx
116 0000 Xxx Xxxxxxxxxx Xxxx
117 000 Xxxxxxxx Xxxxxx
118 2327 NE Third Xxxx
000 0000 Xxxxxxx Xxxxxx
120 19740 & 00000 Xxxxxx Xxxx
121 16990 Ceres Avenue
122 8121 West Quinault Xxxxxxx / Xxxx X & X
000 0000 Xxxxx Xxxxxxxx
125 14460 Des Moines Memorial Drive
126 0000 Xxxxx Xxxxx Xxxxxx
127 4485 Xxxxx Xxxxxxx Xxxxx
000 0000 Xxxx Xxxx
-------- --------------------------------------------------------------------------------------------------
Sequence
Number City State (I) Zip Code Mortgage Rate (%) Amortization Basis Original Balance
-------- ------------------- --------- -------- ----------------- ------------------ ----------------
1 Xxxxx Xxxx XX 00000 4.924% Actual/360 $110,000,000
3 Xxx Xxxx XX 00000 5.222% Actual/360 110,000,000
4 Xxxxxxxx XX 00000 5.080% Actual/360 95,000,000
5 Xxxxxxxxx XX 00000 5.075% Actual/360 80,000,000
6 Xxxxx Xxxxxxx XX 00000 5.067% Actual/360 55,200,000
7 Xxx Xxxx XX 00000 5.510% Actual/360 52,500,000
00 Xxxxxxxxxxx XX 00000 4.694% Actual/360 35,250,000
00 Xxx Xxxx Xxxxxxxxxx XX 00000 5.237% Actual/360 26,720,000
00 Xxxx Xxxxxxxx XX 00000 5.130% Actual/360 24,000,000
14 Xxxxxxxxx XX 00000 5.250% Actual/360 18,600,000
15 Xxxxxxxxxx Xxxxxxx XX 00000 4.990% Actual/360 18,500,000
16 Xxxxxxxx XX 00000 5.260% Actual/360 18,000,000
17 Xxxxxxx XX 00000 5.174% Actual/360 17,484,796
18 Xxx Xxxxxxx XX 00000 4.857% Actual/360 17,400,000
19 Xxx Xxxxx XX 00000 5.533% Actual/360 17,000,000
20 Xxxxxxxxxxx XX 00000 5.083% Actual/360 17,000,000
00 Xxxxxxxx XX 00000 5.120% Actual/360 15,200,000
24 Xxxxxxxx XX 00000 5.245% Actual/360 15,000,000
00 Xxxxx Xx Xxxxxxx XX 00000 5.230% Actual/360 14,720,000
00 Xxxxxxx Xxxxxxx XX 00000 5.162% Actual/360 14,100,000
30 Xxxxxxx Xxxxx XX 00000 5.314% Actual/360 13,936,000
34 Xxxxxxxxxxx XX 00000 5.380% Actual/360 11,750,000
36 Xxxxxxx XX 00000 5.098% Actual/360 10,800,000
37 Xxxxxxxxxxx XX 00000 5.250% Actual/360 10,400,000
38 Xxxxxxxxxxx XX 00000 5.250% Actual/360 10,036,000
39 Xxxxxxxxx XX 00000 5.400% Actual/360 9,925,000
40 Xxxxxxxxxx XX 00000 5.130% Actual/360 9,680,000
41 Xxxxxxxxx XX 00000 5.042% Actual/360 9,550,000
42 Xxxxxxxxx XX 00000 5.507% Actual/360 9,440,000
43 Xxxxxxxxxx XX 00000 5.352% Actual/360 9,400,000
44.1 Xxxxxxxx XX 00000 6,631,726
44.2 Xxxxxxxx XX 00000 1,788,491
44.3 Xxxxxxxx XX 00000 779,782
44 Amarillo TX Various 4.974% Actual/360 9,200,000
46 Xxx Xxxxxxxx XX 00000 4.950% Actual/360 4,200,000
47 Xxx Xxxxxxxx XX 00000 4.950% Actual/360 3,100,000
48 Xxx Xxxxxxxx XX 00000 4.950% Actual/360 1,350,000
8,650,000
49 Xxxxxxx XX 00000 5.360% Actual/360 8,520,000
50 Xxxxxxxx XX 00000 5.560% Actual/360 8,346,325
51 Xxxxxxx XX 00000 5.170% Actual/360 8,200,000
52 Xxxxxxxxxxx XX 00000 5.386% Actual/360 8,150,000
53 Xxxxxxxxx XX 00000 5.058% Actual/360 8,120,000
54 Xxxxx Xxxxx XX 00000 5.475% Actual/360 8,050,000
56 Xxxxxxx XX 00000 5.530% Actual/360 7,520,026
57 Xxx Xxxxxxx XX 00000 4.857% Actual/360 7,400,000
58 Xxxxxxxx XX 00000 5.549% Actual/360 7,100,000
59 Xxxxxxx XX 00000 5.658% Actual/360 7,000,000
60 Xxxxx XX 00000 5.640% Actual/360 6,300,000
61.1 Xxxxxxxxxx XX 00000 2,161,738
61.2 Xxxxxxx XX 00000 2,087,195
61.3 Xxxxxxx XX 00000 1,863,567
61 Various WA Various 5.913% Actual/360 6,112,500
62 Xxxx Xxxxx XX 00000 5.477% Actual/360 6,100,000
63 Xxxxxxx XX 00000 5.664% Actual/360 6,000,000
64 Xxxxxxxxx XX 00000 5.212% Actual/360 5,938,205
00 Xxxxxxx Xxxxxx XX 00000 5.450% Actual/360 5,920,000
66 Xxxxxxxxxx XX 00000 5.100% Actual/360 5,800,000
67 Xxxxxx XX 00000 5.150% Actual/360 5,750,000
68 Xxxx Xxxxxx XX 00000 5.956% Actual/360 5,400,000
69 Xxx Xxxxxxx XX 00000 5.355% Actual/360 5,325,199
70 Xxxxxxxxx XX 00000 5.694% Actual/360 5,200,000
71 Xxxxxxxx XX 00000 4.600% 30/360 5,060,000
72 Xxxxxxx XX 00000 5.147% Actual/360 4,950,000
73 Xxxxxxxxx XX 00000 5.778% Actual/360 4,700,000
74 Xxxxxxxxx XX 00000 5.099% Actual/360 4,700,000
75 Xxxxx Xxxxx XX 00000 5.172% Actual/360 4,650,000
76 Xxxxxxxxx XX 00000 5.333% Actual/360 4,640,000
77 Xxxxxxx XX 00000 5.353% Actual/360 4,600,000
78 Xxxxxxx XX 00000 5.325% Actual/360 4,560,000
79 Xxxxxxxxx XX 00000 5.110% Actual/360 4,400,000
00 Xxxxxxx Xxxxxx XX 00000 5.450% Actual/360 4,320,000
81 Xxxxxx XX 00000 5.150% Actual/360 4,300,000
82 Xxxxxxxx XX 00000 5.507% Actual/360 4,035,000
00 Xxxxxx Xxxx Xxxxxx XX 00000 5.251% Actual/360 4,000,000
85 Xxxxxx XX 00000 5.615% Actual/360 4,000,000
86.1 Xxxxxxxx Xxxxxxx XX 00000 1,736,170
86.2 Xxxx Xxxxxxxx XX 00000 1,634,043
86.3 Xxxxxxxx Xxxxxxx XX 00000 629,787
86 Various PA Various 5.404% Actual/360 4,000,000
87 Xxxxx XX 00000 4.969% Actual/360 3,920,000
00 Xxxxxx Xxxxxxx XX 00000 5.405% Actual/360 3,900,000
00.0 Xxxxxxxxxx Xxxxx XX 00000 1,522,071
89.2 Xxxxxx XX 00000 1,311,535
89.3 Xxxxxxxxxx Xxxxx XX 00000 966,394
89 Various WA Various 5.800% Actual/360 3,800,000
90 Xxxxxxxxxx XX 00000 5.227% Actual/360 3,700,000
91 Xxxxxxxxx XX 00000 5.977% Actual/360 3,690,635
00 Xxxx Xxxxxxx XX 00000 5.230% Actual/360 3,600,000
93 Xxxxx Xxxx XX 00000 5.350% Actual/360 3,442,000
94 Xxxxxxx XX 00000 5.703% Actual/360 3,434,000
95 Xxxxxxxxx XX 00000 5.714% Actual/360 3,412,500
96 Xxxxxx XX 00000 5.150% Actual/360 3,350,000
97 Xxxxxx XX 00000 5.736% Actual/360 3,345,000
98 Xxxxxxx XX 00000 5.240% Actual/360 3,100,000
99 Xxxxxxxxxx XX 00000 5.472% Actual/360 2,100,000
000 Xxxxxxxxx XX 00000 5.472% Actual/360 1,000,000
3,100,000
101 Xxxxxx XX 00000 5.621% Actual/360 3,042,000
000 Xxxxxxxxxx XX 00000 5.426% Actual/360 3,000,000
000 Xxxx Xxxxx XX 00000 5.417% Actual/360 2,925,000
000 Xxxx Xxxx Xxxx XX 00000 5.766% Actual/360 2,850,000
000 Xxxxxxxxxxx XX 00000 5.300% Actual/360 2,730,000
000 Xxxxxx XX 00000 5.692% Actual/360 2,700,000
000 Xxxxxx XX 00000 5.470% Actual/360 2,640,000
000 Xxxxxxx XX 00000 5.500% Actual/360 2,550,000
000 Xxxxxxx XX 00000 5.442% Actual/360 2,480,000
000 Xxxxxxxxx XX 00000 5.530% Actual/360 2,475,000
000 Xxxxxxxx Xxxxxxx XX 00000 5.404% Actual/360 2,460,000
000 Xxxxxxx Xxx XX 00000 5.100% Actual/360 2,400,000
000 Xxxxxx XX 00000 5.736% Actual/360 2,400,000
115 Xxxx Xxxxxx XX 00000 5.480% Actual/360 2,325,000
000 Xxxxxx XX 00000 5.751% Actual/360 2,300,000
000 Xxxxxxx XX 00000 5.235% Actual/360 2,236,000
000 Xxxxx XX 00000 5.922% Actual/360 2,240,000
000 Xxxxxxxx XX 00000 4.989% Actual/360 2,175,500
000 Xxxxxxxx Xxxx XX 00000 5.710% Actual/360 2,050,000
000 Xxxxxxx XX 00000 5.550% Actual/360 2,050,000
000 Xxxxxxxxx XX 00000 5.257% Actual/360 2,050,000
124 Xxxxx Xxx XX 00000 5.249% Actual/360 2,000,000
000 XxxXxx XX 00000 5.545% Actual/360 2,000,000
000 Xxxxxx XX 00000 5.673% Actual/360 1,200,000
000 Xxxxxxx XX 00000 5.809% Actual/360 1,050,000
000 Xxxxx XX 00000 5.997% Actual/360 1,000,000
-------- ------------------- --------- -------- ----------------- ------------------ ----------------
Sequence
Number Cut-off Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date
-------- --------------- ------------------------------------------ -------------------- --------
1 $110,000,000 79 4/1/2012 1st
3 110,000,000 118 7/1/2015 1st
4 94,687,985 57 6/1/2010 1st
5 80,000,000 113 2/1/2015 1st
6 55,200,000 58 7/1/2010 1st
7 52,500,000 116 5/1/2015 1st
10 35,250,000 57 6/1/2010 1st
12 26,720,000 116 5/1/2015 1st
13 24,000,000 119 8/1/2015 1st
14 18,600,000 118 7/1/2015 1st
15 18,471,452 119 8/1/2015 1st
16 17,982,022 83 8/1/2012 7th
17 17,484,796 121 10/1/2015 1st
18 17,400,000 57 6/1/2010 1st
19 17,000,000 115 4/1/2015 1st
20 16,964,493 58 7/1/2010 1st
21 15,200,000 118 7/1/2015 1st
24 14,984,964 83 8/1/2012 1st
26 14,720,000 116 5/1/2015 1st
29 14,100,000 60 9/1/2010 1st
30 13,936,000 116 5/1/2015 1st
34 11,750,000 117 6/1/2015 1st
36 10,777,523 58 7/1/2010 1st
37 10,400,000 118 7/1/2015 1st
38 10,036,000 118 7/1/2015 1st
39 9,925,000 118 7/1/2015 1st
40 9,660,007 118 7/1/2015 1st
41 9,550,000 119 8/1/2015 1st
42 9,440,000 115 4/1/2015 1st
43 9,400,000 117 6/1/2015 1st
44.1 6,624,636
44.2 1,786,579
44.3 778,949
44 9,190,164 119 8/1/2015 1st
46 4,195,484 119 8/1/2015 1st
47 3,096,667 119 8/1/2015 1st
48 1,348,548 119 8/1/2015 1st
8,640,700
49 8,511,695 119 8/1/2015 1st
50 8,321,681 117 6/1/2015 1st
51 8,200,000 120 9/1/2015 1st
52 8,150,000 117 6/1/2015 1st
53 8,120,000 118 7/1/2015 1st
54 8,050,000 117 6/1/2015 1st
56 7,480,714 111 12/1/2014 1st
57 7,400,000 57 6/1/2010 1st
58 7,100,000 119 8/1/2015 1st
59 6,993,663 119 8/1/2015 1st
60 6,282,720 118 7/1/2015 1st
61.1 2,158,062
61.2 2,083,646
61.3 1,860,399
61 6,102,108 118 7/1/2015 1st
62 6,081,648 117 6/1/2015 1st
63 5,982,697 81 6/1/2012 1st
64 5,938,205 116 5/1/2015 1st
65 5,908,684 118 7/1/2015 1st
66 5,800,000 120 9/1/2015 1st
67 5,750,000 117 6/1/2015 1st
68 5,400,000 117 6/1/2015 1st
69 5,325,199 116 5/1/2015 1st
70 5,195,335 119 8/1/2015 1st
71 5,060,000 82 7/1/2012 1st
72 4,950,000 94 7/1/2013 1st
73 4,700,000 117 6/1/2015 1st
74 4,700,000 118 7/1/2015 1st
75 4,640,491 118 7/1/2015 1st
76 4,640,000 117 6/1/2015 1st
77 4,586,686 118 7/1/2015 1st
78 4,560,000 118 7/1/2015 1st
79 4,400,000 118 7/1/2015 1st
80 4,311,742 118 7/1/2015 1st
81 4,300,000 117 6/1/2015 1st
82 4,035,000 115 4/1/2015 1st
83 4,000,000 120 9/1/2015 1st
85 3,992,661 118 7/1/2015 1st
86.1 1,732,814
86.2 1,630,884
86.3 628,570
86 3,992,267 118 7/1/2015 1st
87 3,915,804 119 8/1/2015 1st
88 3,900,000 118 7/1/2015 1st
89.1 1,518,022
89.2 1,308,046
89.3 963,823
89 3,789,891 118 7/1/2015 1st
90 3,700,000 80 5/1/2012 1st
91 3,643,209 104 5/1/2014 1st
92 3,600,000 118 7/1/2015 1st
93 3,435,258 118 7/1/2015 1st
94 3,424,185 117 6/1/2015 1st
95 3,412,500 116 5/1/2015 1st
96 3,350,000 117 6/1/2015 1st
97 3,345,000 112 1/1/2015 1st
98 3,100,000 118 7/1/2015 1st
99 2,090,739 117 6/1/2015 1st
100 995,590 117 6/1/2015 1st
3,086,329
101 3,042,000 60 9/1/2010 1st
102 2,987,953 116 5/1/2015 1st
103 2,925,000 120 9/1/2015 1st
105 2,839,424 68 5/1/2011 1st
106 2,730,000 116 5/1/2015 1st
107 2,700,000 118 7/1/2015 1st
108 2,633,634 118 7/1/2015 1st
109 2,545,186 118 7/1/2015 1st
110 2,475,250 118 7/1/2015 1st
111 2,470,362 118 7/1/2015 1st
112 2,455,244 118 7/1/2015 1st
113 2,397,509 119 8/1/2015 1st
114 2,391,031 116 5/1/2015 1st
115 2,325,000 118 7/1/2015 1st
116 2,291,435 116 5/1/2015 1st
117 2,232,700 119 8/1/2015 1st
118 2,229,681 115 4/1/2015 1st
119 2,170,854 118 7/1/2015 1st
120 2,050,000 116 5/1/2015 1st
121 2,050,000 118 7/1/2015 1st
122 2,045,893 118 7/1/2015 1st
124 1,997,997 119 8/1/2015 1st
125 1,992,185 116 5/1/2015 1st
126 1,196,547 117 6/1/2015 1st
127 1,046,143 116 5/1/2015 1st
128 996,488 116 5/1/2015 1st
-------- --------------- ------------------------------------------ -------------------- --------
$1,207,853,994
Sequence
Number Monthly Payment Administrative Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate
-------- --------------- ----------------------- -------------------------- -------------------------
1 $457,608 0.062% 0.050% 0.010%
3 599,342 0.062% 0.050% 0.010%
4 514,635 0.022% 0.010% 0.010%
5 343,032 0.062% 0.050% 0.010%
6 236,319 0.022% 0.010% 0.010%
7 244,411 0.062% 0.050% 0.010%
10 139,801 0.042% 0.030% 0.010%
12 118,230 0.042% 0.030% 0.010%
13 104,025 0.042% 0.030% 0.010%
14 102,710 0.042% 0.030% 0.010%
15 108,041 0.042% 0.030% 0.010%
16 99,508 0.042% 0.030% 0.010%
17 95,730 0.042% 0.030% 0.010%
18 71,405 0.042% 0.030% 0.010%
19 96,876 0.062% 0.050% 0.010%
20 92,124 0.042% 0.030% 0.010%
21 82,715 0.042% 0.030% 0.010%
24 82,784 0.042% 0.030% 0.010%
26 65,046 0.042% 0.030% 0.010%
29 77,094 0.042% 0.030% 0.010%
30 62,570 0.042% 0.030% 0.010%
34 65,833 0.062% 0.050% 0.010%
36 58,625 0.042% 0.030% 0.010%
37 57,429 0.042% 0.030% 0.010%
38 55,419 0.062% 0.050% 0.010%
39 55,732 0.062% 0.050% 0.010%
40 52,736 0.042% 0.030% 0.010%
41 51,512 0.112% 0.100% 0.010%
42 53,641 0.042% 0.030% 0.010%
43 52,503 0.042% 0.030% 0.010%
44.1
44.2
44.3
44 49,242 0.042% 0.030% 0.010%
46 22,418 0.042% 0.030% 0.010%
47 16,547 0.042% 0.030% 0.010%
48 7,206 0.042% 0.030% 0.010%
49 47,630 0.062% 0.050% 0.010%
50 47,704 0.062% 0.050% 0.010%
51 44,875 0.042% 0.030% 0.010%
52 45,694 0.062% 0.050% 0.010%
53 43,878 0.042% 0.030% 0.010%
54 45,581 0.042% 0.030% 0.010%
56 43,028 0.062% 0.050% 0.010%
57 30,367 0.042% 0.030% 0.010%
58 40,532 0.042% 0.030% 0.010%
59 40,442 0.072% 0.060% 0.010%
60 39,216 0.082% 0.070% 0.010%
61.1
61.2
61.3
61 36,306 0.062% 0.050% 0.010%
62 34,547 0.082% 0.070% 0.010%
63 34,687 0.062% 0.050% 0.010%
64 26,150 0.042% 0.030% 0.010%
65 33,428 0.062% 0.050% 0.010%
66 31,491 0.042% 0.030% 0.010%
67 31,397 0.072% 0.060% 0.010%
68 33,067 0.072% 0.060% 0.010%
69 24,094 0.042% 0.030% 0.010%
70 30,161 0.072% 0.060% 0.010%
71 19,397 0.042% 0.030% 0.010%
72 27,019 0.042% 0.030% 0.010%
73 27,512 0.042% 0.030% 0.010%
74 20,248 0.042% 0.030% 0.010%
75 25,453 0.042% 0.030% 0.010%
76 20,907 0.112% 0.100% 0.010%
77 27,846 0.062% 0.050% 0.010%
78 25,393 0.062% 0.050% 0.010%
79 23,917 0.112% 0.100% 0.010%
80 24,393 0.062% 0.050% 0.010%
81 23,479 0.072% 0.060% 0.010%
82 22,928 0.042% 0.030% 0.010%
83 22,091 0.042% 0.030% 0.010%
85 23,001 0.062% 0.050% 0.010%
86.1
86.2
86.3
86 22,471 0.062% 0.050% 0.010%
87 20,969 0.042% 0.030% 0.010%
88 23,729 0.042% 0.030% 0.010%
89.1
89.2
89.3
89 24,021 0.062% 0.050% 0.010%
90 20,379 0.062% 0.050% 0.010%
91 22,139 0.082% 0.070% 0.010%
92 19,835 0.062% 0.050% 0.010%
93 19,221 0.062% 0.050% 0.010%
94 19,937 0.062% 0.050% 0.010%
95 19,836 0.062% 0.050% 0.010%
96 18,292 0.072% 0.060% 0.010%
97 19,491 0.062% 0.050% 0.010%
98 17,099 0.042% 0.030% 0.010%
99 12,861 0.042% 0.030% 0.010%
100 6,124 0.042% 0.030% 0.010%
101 17,504 0.062% 0.050% 0.010%
102 16,895 0.062% 0.050% 0.010%
103 16,456 0.042% 0.030% 0.010%
105 16,661 0.092% 0.080% 0.010%
106 15,160 0.062% 0.050% 0.010%
107 15,863 0.092% 0.080% 0.010%
108 15,611 0.062% 0.050% 0.010%
109 14,479 0.092% 0.080% 0.010%
110 13,991 0.042% 0.030% 0.010%
111 14,099 0.092% 0.080% 0.010%
112 13,820 0.062% 0.050% 0.010%
113 13,031 0.062% 0.050% 0.010%
114 13,984 0.052% 0.040% 0.010%
115 14,250 0.062% 0.050% 0.010%
116 13,424 0.062% 0.050% 0.010%
117 13,379 0.092% 0.080% 0.010%
118 13,318 0.062% 0.050% 0.010%
119 11,664 0.042% 0.030% 0.010%
120 11,911 0.072% 0.060% 0.010%
121 11,704 0.062% 0.050% 0.010%
122 11,329 0.062% 0.050% 0.010%
124 11,043 0.042% 0.030% 0.010%
125 11,412 0.092% 0.080% 0.010%
126 6,944 0.062% 0.050% 0.010%
127 6,167 0.062% 0.050% 0.010%
128 5,994 0.062% 0.050% 0.010%
-------- --------------- ----------------------- -------------------------- -------------------------
Sequence
Number Ownership Interest Crossed Original Amortization (months) ARD Loan Grace Period
-------- ------------------ ---------------- ------------------------------ -------- ------------
1 Fee 0 No 0
3 Fee 360 Yes 5
4 Fee 360 No 10
5 Fee 0 No 0
6 Fee 0 No 5
7 Fee 0 No 0
10 Fee 0 No 0
12 Fee 0 No 5
13 Fee 0 Xx 0
00 Xxx 000 Xx 5
15 Fee 300 Xx 0
00 Xxx 000 Xx 0
17 Fee 360 No 5
18 Fee 0 Xx 0
00 Xxx 000 Xx 5
20 Fee 360 Xx 0
00 Xxx 000 Xx 5
24 Fee 360 No 5
26 Fee 0 Xx 0
00 Xxx 000 Xx 5
30 Fee 0 Xx 0
00 Xxx 000 Xx 5
36 Fee 360 No 5
37 Fee 360 Xx 0
00 Xxx 000 Xx 5
39 Fee 360 Xx 0
00 Xxx 000 Xx 5
41 Fee 360 Xx 0
00 Xxx 000 Xx 5
43 Leasehold 360 No 5
44.1 Fee
44.2 Fee
44.3 Fee
44 Fee 360 Xx 0
00 Xxx Xxx(XXXX 00-0-X) 000 Xx 5
47 Fee Yes(BACM 05-4-B) 360 Xx 0
00 Xxx Xxx(XXXX 00-0-X) 000 Xx 5
49 Fee 360 No 5
50 Fee 360 Xx 0
00 Xxx 000 Xx 5
52 Fee 360 Xx 0
00 Xxx 000 Xx 5
54 Fee 360 Xx 0
00 Xxx 000 Xx 5
57 Fee 0 Xx 0
00 Xxx 000 Xx 5
59 Fee 360 Xx 0
00 Xxx 000 Xx 5
61.1 Fee
61.2 Fee
61.3 Fee
61 Fee 360 Xx 0
00 Xxx 000 Xx 10
63 Fee 360 No 5
64 Fee 0 Xx 0
00 Xxx 000 Xx 5
66 Fee 360 Xx 0
00 Xxx 000 Xx 5
68 Fee 336 No 5
69 Fee 0 Xx 0
00 Xxx 000 Xx 5
71 Fee 0 Xx 0
00 Xxx 000 Xx 5
73 Fee 360 No 5
74 Fee 0 Xx 0
00 Xxx 000 Xx 5
76 Fee 0 No 5
77 Fee 300 Yes 15
78 Fee 360 Xx 0
00 Xxx 000 Xx 5
80 Fee 360 Xx 0
00 Xxx 000 Xx 5
82 Fee 360 Xx 0
00 Xxx 000 Xx 5
85 Fee 360 No 5
86.1 Fee
86.2 Fee
86.3 Fee
86 Fee 360 Xx 0
00 Xxx 000 Xx 5
88 Fee 300 No 5
89.1 Fee
89.2 Fee
89.3 Fee
89 Fee 300 No 5
90 Fee 360 Xx 0
00 Xxx 000 Xx 5
92 Fee 360 Xx 0
00 Xxx 000 Xx 5
94 Fee 360 Xx 0
00 Xxx 000 Xx 5
96 Fee 360 Xx 0
00 Xxx 000 Xx 5
98 Fee 360 No 10
99 Fee Yes(BACM 05-4-A) 300 Xx 0
000 Xxx Xxx(XXXX 00-0-X) 000 Xx 5
101 Fee 360 Xx 0
000 Xxx 000 Xx 5
103 Fee 360 Xx 0
000 Xxx 000 Xx 5
106 Fee 360 Xx 0
000 Xxx 000 Xx 5
108 Fee 324 Xx 0
000 Xxx 000 Xx 5
110 Fee 360 Xx 0
000 Xxx 000 Xx 5
112 Fee 360 Xx 0
000 Xxx 000 Xx 5
114 Fee 360 Xx 0
000 Xxx 000 Xx 7
116 Fee 360 No 5
117 Fee 300 Yes 5
118 Fee 360 Xx 0
000 Xxx 000 Xx 5
120 Fee 360 Xx 0
000 Xxx 000 Xx 7
122 Fee 360 Xx 0
000 Xxx 000 Xx 5
125 Fee 360 Xx 0
000 Xxx 000 Xx 5
127 Fee 360 No 5
128 Fee 360 No 5
-------- ------------------ ---------------- ------------------------------ -------- ------------
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances. The
Seller has validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance; provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
provided, if the related assignment of Mortgage and/or assignment of Assignment
of Leases has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (except in the case of a Mortgage Loan
maintained on the records of MERS, including endorsement and delivery of the
related Mortgage Note to the Purchaser and recording of the related Assignment
of Mortgage in favor of Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary including,
without limitation, foreclosure or similar proceedings (as applicable for the
jurisdiction where the related Mortgaged Property is located) and, subject to
the exceptions set forth in Paragraph 13 below, enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least (A) 12 months or (B) for the restoration period plus 180
days. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available and was required to be maintained by
FEMA, a flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. For each Mortgaged Property
located in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which
indicated a PML of less than 20% was prepared, based on a 450 or 475-year look
back with a 10% probability of exceedance in a 50-year period, at origination
for such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage. If the Mortgaged Property is located in
Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina or South Carolina such Mortgaged Property is
insured by windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
full insurable value, or 100% of the replacement cost, of the improvements
located on the related Mortgaged Property. With respect to each Mortgage Loan
that has a principal balance as of the origination date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability. With respect to
each Mortgage Loan, the related Mortgage requires that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy will (or,
at the lender's option, will) be applied either to the repair or restoration of
the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). At origination, the Seller received evidence that each
Mortgaged Property was insured by a commercial general liability policy in an
amount not less than $1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the subject
Mortgage Loan no Borrower under a Mortgage Loan was a debtor in any state or
federal bankruptcy, insolvency or similar proceeding. As of the Closing Date, to
the Seller's knowledge, no Borrower under a Mortgage Loan was a debtor in any
state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised, would
cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a curable default
of the lessee under such Ground Lease following notice thereof from
the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (a) the satisfaction of certain legal and underwriting requirements, (b)
the payment of a release price and, if required by the related Mortgage Loan
documents, prepayment consideration in connection therewith or (c) the
substitution of real property collateral upon the satisfaction of certain legal
and underwriting requirements; and provided, further, that any Mortgage Loan may
permit the unconditional release of one or more unimproved parcels of land to
which the Seller did not give any material value in underwriting the Mortgage
Loan. The release provisions in any Mortgage Loan if exercised would not cause
such Mortgage Loan to fail to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance in an amount to make all
scheduled payments under the Mortgage Note (a) no earlier than two years
following the Closing Date and (b) only with substitute collateral constituting
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. To Seller's knowledge there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan, in any such case to the extent the same
materially and adversely affects the value of the Mortgage Loan and the related
Mortgaged Property; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in this Schedule II
or by the exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions (including but not limited to
existing and future mezzanine debt) mentioned in the related Mortgage Loan
Documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy or pollution legal liability policy, then the Seller has delivered or
caused to be delivered to the insurer under such policy copies of all
environmental reports in the Seller's possession related to such Mortgaged
Property to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage Loans by
the Seller or a sub-servicer retained by the Seller has been legal, proper and
prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; provided, if the related security agreement and/or UCC
Financing Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the Seller
shall take all actions as are necessary to cause the Trust to be shown as the
owner of the Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination and to the Seller's knowledge as of the Cut-off Date,
each Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
REPRESENTATION 4
Lien; Valid Assignment.
Sotheby's Building (59039) Pursuant to the related estoppel certificate
dated as of June 22, 2005, the sole tenant,
Sotheby's, has a right of first offer with
respect to the related Mortgaged Property
subject to certain conditions set forth in
Section 23 of the related lease including, but
not limited to, no material non-monetary event
of default or monetary event of default in
excess of $25,000 having occurred and
continuing and exclusions from Section 23 for a
transfer of the fee interest in the related
Mortgage Property or the related landlord's
interest in the related lease to the mortgagee
(or its wholly owned affiliate) or any other
purchaser at a foreclosure sale. The title
policy excepts such right from its coverage.
REPRESENTATION 14
Insurance.
Heritage Place Apartments The original principal balance of each of these
(58863) Mortgage Loans is less than $20,000,000, and
terrorism insurance is not required pursuant to
Woodmeade South Apartments the related loan documents.
(58865)
REPRESENTATION 17
Local Law Compliance.
Hunter's Point Apartments The zoning report indicates that the Mortgaged
(58902) Property requires 2 additional parking spaces.
Section 5.22 of the related loan agreement
requires the addition of those 2 spaces within
60 days of the closing date of the related
Mortgage Loan. The related borrower has
indicated that this has been completed, however
final documentation has not yet been received.
REPRESENTATION 28
Releases of Mortgaged Properties.
Pacific Arts Plaza (58851) The related Borrower may obtain a release of
one or more of the parcels or outlots described
in a schedule to the related loan agreement,
from the lien of the related mortgage in
connection with a subdivision of the related
Mortgaged Property or such Borrower may ground
lease a release parcel to an entity wholly
owned and controlled by the related guarantor
provided, among other things, no event of
default exists, with respect only to that
certain parcel that may be released which is
located at 000 Xxxxx Xxxxxxxxx, such Borrower
will deposit the amount of $10,000,000, which
will be held as additional collateral for the
Loan, and such Borrower will deliver an opinion
of counsel acceptable to a prudent
institutional lender and the rating agencies,
that the permitted parcel release would not
constitute a significant modification of the
Mortgage Loan.
Peachtree Mall (59001) Certain releases of parcels or outlots as
designated by related Borrower are permitted
upon the satisfaction of certain conditions,
which conditions include, without limitation,
the delivery of a REMIC opinion and evidence
that the parcel or outlot being released is
vacant, non-income producing and either (i)
unimproved (or improved only by surface parking
areas or landscaping) or (ii) subject to the
mortgagee's express prior written consent,
improved.
Certain lot line adjustments to the Mortgaged
Property are permitted upon the satisfaction of
certain conditions including, without
limitation, the delivery of a REMIC opinion and
evidence that the parcel or outlot being
released is vacant, non-income producing and
either (i) unimproved (or improved only by
surface parking areas or landscaping) or (ii)
subject to the mortgagee's express prior
written consent, improved.
REPRESENTATION 35
Single Purpose Entity.
Fullerton Self Storage The Mortgaged Property is owned by the owner of the
(58867) related Borrower and such Borrower executed the
related Mortgage Note and Loan Agreement. The
Mortgage Loan is secured by an Indemnity Guaranty
and an Indemnity Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Fixture Filing,
which documents have been executed by the owner of
the related Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to the
State of Maryland.
REPRESENTATION 37
Tax Parcels.
Prairie Stone Commons The Mortgaged Property was subject to a recent lot
(58986) line readjustment, however, the final separate tax
lot endorsement cannot be issued until the new
reassessments are issued (which are done on an
annual basis).
REPRESENTATION 44
Fee Simple or Leasehold Interests.
Fullerton Self Storage The Mortgaged Property is owned by the owner of the
(58867) related Borrower and such Borrower executed the
related Mortgage Note and Loan Agreement. The
Mortgage Loan is secured by an Indemnity Guaranty
and an Indemnity Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Fixture Filing,
which documents have been executed by the owner of
the related Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to the
State of Maryland.
BACM 2005-4 SECURITIZATION
REP EXCEPTIONS FOR THE BRIDGER MORTGAGE LOANS
Exception 4 - Lien; Valid Assignment:
With respect to the Flamingo Commerce Center Mortgage Loan, in order to
comply with applicable zoning requirements, the Mortgaged Property and an
adjacent real property parcel (such parcel, the "Adjacent Parcel," and together
with the Mortgaged Property, the "Flamingo Properties") are subject to a Unity
of Title document that requires the Flamingo Properties to be sold, transferred,
devised or assigned as one plot or parcel of land and not separately. But (i)
the Unity of Title does not limit the mortgagee's right or ability to foreclose
the Mortgage encumbering the Mortgaged Property so long as the Flamingo
Properties continue to be developed and treated as a single integrated project
with respect to the application of all development regulations affecting the
Flamingo Properties and (ii) a foreclosure by a mortgagee on the Adjacent Parcel
will not cause a foreclosure on the Mortgaged Property or otherwise materially
adversely affect the security provided by the Mortgaged Property. In addition,
(x) the Borrower and the owner of the Adjacent Parcel have, as allowed by the
Unity of Title, entered into a declaration of condominium covering the Flamingo
Properties and (y) the Unity of Title provides that the Borrower has the right
to freely sell, transfer, devise, lease and/or encumber its condominium unit so
long as the Flamingo Properties continue to be developed and treated as a single
integrated project with respect to the application of all development
regulations affecting the Flamingo Properties.
Exception 14 - Insurance:
With respect to the Camas Mini Storage Mortgage Loan, the related all-risk
insurance policy and business interruption policy excluded acts of terrorism
from coverage as of the date of origination, but terrorism coverage was
subsequently obtained.
The Mortgaged Property securing the Parkwood Lane MHC Mortgage Loan is
located in a Zone 3 seismic zone, but a seismic report was not prepared and
earthquake insurance was not obtained because such Mortgaged Property consists
of a manufactured housing community with no income-producing improvements.
Exception 21 - No Equity Interest, Equity Participation or Contingent Interest:
Each of the Holiday Inn Express - Concord and Thedacare Medical Office
Building Mortgage Loans provides that during the period commencing on or about
the related Anticipated Repayment Date and continuing until such Mortgage Loan
is paid in full, unless otherwise determined by the lender, all payments shall
be applied, in the following order of priority, to: (i) amounts, other than
principal and interest, due under the Mortgage Loan documents; (ii) operating
expenses for the Mortgaged Property; (iii) extraordinary expenses; (iv) interest
and additional interest due on the Mortgage Loan; and (v) the principal balance
of the Mortgage Loan.
Exception 23 - Other Mortgage Liens:
The Mortgaged Property securing the McDonald Retail Portfolio Mortgage
Loan is encumbered by a subordinate mortgage lien in the amount of $407,500.
The Mortgaged Property securing the Bridge Pointe Plaza Mortgage Loan is
encumbered by a subordinate mortgage lien in the amount of $180,000.
Exception 41 - Servicing Rights:
Servicing rights have been granted as follows:
Loan Servicer
------------------------------------ ------------------------------
Condor Garden Apartments Capstone Realty Advisors
Evergreen Village Apartments Capstone Realty Advisors
Lakeshore Colonial Apartments Capstone Realty Advisors
Park Place Shopping Center Capstone Realty Advisors
Parkview Manor Apartments Capstone Realty Advisors
Bridge Pointe Plaza Collateral Mortgage Capital
Des Moines Way Self Storage Collateral Mortgage Capital
Lake Canyada MHC Collateral Mortgage Capital
Northgate Center - Orlando Collateral Mortgage Capital
Xxxxxxxx Building J Collateral Mortgage Capital
Parkway Commons Horizon Collateral Mortgage Capital
Port Orange Self Storage Collateral Mortgage Capital
Thedacare Medical Office Building Collateral Mortgage Capital
Midtown Office Financial Federal Savings Bank
Parkview Apartments Financial Federal Savings Bank
AAA Storage City Laureate Capital
Gladiolus Self Storage Laureate Capital
Holiday Inn Express - Concord Laureate Capital
Xxxxxxx Tampa Laureate Capital
Addison Lockers Midland
Arcadia Plaza Midland
Burlington Retail Center Midland
CVS - North Sheffield Midland
Camas Mini Storage Midland
Xxxx Medical Building Midland
Xxxxxxxx Bridge Road Building Midland
Financial Plaza Midland
Flamingo Commerce Center Midland
Fort Mohave Storage Midland
Friar's Branch Crossing Midland
Highpoint Center Midland
IGC Park - Phase I Midland
IGC Park - Phase II Midland
Lake Xxxxxxx Station 3 Midland
Lincoln Park 10 Building Midland
Magnolia Centre I & Park Centre Midland
Maxi Space Storage Portfolio Midland
McDonald Retail Portfolio Midland
Xxxxxxx of Livonia (2005) Midland
Mission Lake Center Midland
Mountain View Estates MHC Midland
Newport Cove Apartments Midland
Parkwood Lane MHC Midland
Philomeno & Xxxxxxxx Portfolio Midland
Platinum Storage Midland
Premier Club Apartments Midland
Puyallup Executive Park Midland
Quinault Professional Center Midland
SUSA Alpharetta Midland
South 75 Center Midland
South Gravers Office Midland
Southgate Shopping Center-Yakima, WA Midland
Tyler Street Self Storage Midland
Walgreens - Havana Street Midland
Woodcrest Apartments in Burien Midland
Exception 42 - Recourse:
With respect to the Gladiolus Self Storage Mortgage Loan:
(i) liability for misapplication of rents is limited to an amount equal to
the difference of (a) the net operating income of the Mortgaged Property for the
12 calendar months prior to the date the mortgagee notifies the Borrower and
guarantor of its determination that it has incurred a loss less (b) the sum of
monthly payments of principal, interest and reserves received by the mortgagee
during that 12-month period; and
(ii) the mortgagee is required to notify the Borrower and guarantor in
writing within 30 days after (a) it makes any determination that it has incurred
liabilities, costs, expenses, claims, losses or damages with respect to the
non-recourse exceptions set forth in the Mortgage Loan documents and (b) a
written request of the Borrower or guarantor for a written statement with
respect to the amounts and other items set forth in clause (a).
--------------------------------------------------------------------------------
The following Mortgage Loans are the Bridger Mortgage Loans:
AAA Storage City
Addison Lockers
Arcadia Plaza
Bridge Pointe Plaza
Burlington Retail Center
Camas Mini Storage
Xxxx Medical Building
Condor Garden Apartments
Xxxxxxxx Bridge Road Building
CVS Corporation ( North Shefield)
Des Moines Way Self Storage
Evergreen Village Apartments
Financial Plaza
Flamingo Commerce Center
Fort Mohave Storage
Friar's Branch Crossing
Gladiolus Self Storage
Highpoint Center
Holiday Inn Exp - Concord
IGC Park - Phase I
IGC Park - Phase II
Lake Canyada MHC
Lake Xxxxxxx Station 3
Lakeshore Colonial Apartments
Lincoln Park 10 Building
Magnolia Centre I & Park Centre
Maxi Space Storage Portfolio
McDonald Retail Portfolio
Xxxxxxx of Livonia (2005)
Xxxxxxx Xxxxxx
Xxxxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx Xxxxxxx MHC
Newport Cove Apartments
Northgate Center - Xxxxxxx
Xxxxxxxx Building J
Park Place Shopping Center
Parkview Apartments
Parkview Manor Apartments
Parkway Commons - Horizon
Parkwood Lane MHC
Philomeno & Xxxxxxxx Portfolio
Platinum Storage
Port Orange Self Storage
Premier Club Apartments
Puyallup Executive Park
Quinault Professional Center
South 75 Center
South Gravers Office
Southgate Shopping Center - Yakima
SUSA Alpharetta
Thedacare Medical Office Building
Tyler Street Self Storage
Walgreens- Havana Street
Xxxxxxx Tampa
Woodcrest Apartments in Burien
