EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of April 12, 2005, between Bear Xxxxxxx Commercial
Mortgage Inc., as seller (the "Seller" or "BSCMI") 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").
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (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, and (iii) certain mortgage loans transferred by Barclays Capital Real
Estate Inc. ("BCREI") to the Purchaser pursuant to a mortgage loan purchase and
sale agreement, dated as of the date hereof between BCREI 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 Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and/or Fitch, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "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 April 1, 2005 (the "Pooling
and Servicing Agreement"), among BACM, as depositor, Bank of America, N.A., as
master servicer (the "Master Servicer"), X.X. Xxxxxx Company, 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. ("BSCI"), Barclays
Capital Inc. ("BCI"), Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") and Greenwich
Capital Markets, Inc. ("Greenwich") (collectively, the "Underwriters") pursuant
to an underwriting agreement, dated as of March 31, 2005 (the "Underwriting
Agreement"). BACM intends to sell certain of the remaining Classes of
Certificates (the "Non-Registered Certificates") to Banc of America and BSCI, as
initial purchasers (together the "Initial Purchasers"), pursuant to a
certificate purchase agreement dated as of March 31, 2005 (the "Certificate
Purchase Agreement"), among BACM, Banc of America, BSCI. BACM intends to place
certain other of the remaining Classes of Certificates (the "Privately Placed
Certificates") to Banc of America, as private placement agent (the "Private
Placement Agent"), pursuant to a private placement agency agreement dated as of
March 31, 2005 (the "Private Placement Agency Agreement"), between BACM and Banc
of America. The Registered Certificates are more fully described in the
prospectus dated March 31, 2005 (the "Basic Prospectus"), and the supplement to
the Basic Prospectus dated March 31, 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 four private placement memoranda, each dated March 31, 2005
(the "Memoranda"), as they 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 Memoranda and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of April 12, 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 $329,405,278.31, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
April 12, 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.
(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) 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 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 corporation, duly authorized, validly existing
and in good standing under the laws of the State of New York.
(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, REMIC II or the
Component Mortgage Loan REMIC 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
Secretary of the State of New York, 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 Memoranda
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 Memoranda 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 Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, 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 Bear Xxxxxxx Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department, telecopy number: (000) 000-0000 (with
copies to Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department)
telecopy number: (000) 000-0000 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.
[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.
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxx Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Managing Director
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- ----------- -------------------------------------------------
4 42235 BSCMI Zurich Towers
10.1 41146 BSCMI Parkway Portfolio - Carmel Crossing
10.2 41146 BSCMI Parkway Portfolio - Lakewood II Office Building
10.3 41146 BSCMI Parkway Portfolio - Falls Pointe
10 41146 BSCMI Parkway Portfolio (Roll Xx)
00 00000 XXXXX Xxxxxxxx Xxxxx
00 00000 XXXXX Xxxxxxx Perimeter
28 42385 BSCMI Xxxxxx Xxxx Xxxxxx
00.0 00000 XXXXX Xxxxxxx Retail Portfolio - Xxxxx Station
29.2 41674 BSCMI Indiana Retail Portfolio - Madison & Edgewood
29.3 41674 BSCMI Indiana Retail Portfolio - Meridian Xxxxx Shoppes
29.4 41674 BSCMI Indiana Retail Portfolio - Pine Creek Shoppes
29.5 41674 BSCMI Indiana Retail Portfolio - Xxxxxx Xxxxx
00.0 00000 XXXXX Xxxxxxx Retail Portfolio - Lima Road Shoppes
29.7 41674 BSCMI Indiana Retail Portfolio - Keystone Shoppes
29.8 41674 BSCMI Indiana Retail Portfolio - 00 X. Xxxxxx Xxxxx
00.0 00000 XXXXX Xxxxxxx Retail Portfolio - Gardenside Shoppes
29.10 41674 BSCMI Indiana Retail Portfolio - Xxxxxxxxx Plaza
29.11 41674 BSCMI Indiana Retail Portfolio - Seymour Plaza
29.12 41674 BSCMI Indiana Retail Portfolio - Vincennes Plaza
29 41674 BSCMI Indiana Retail Portfolio (Roll Xx)
00 00000 XXXXX 0000 Xxxxxxxx Xxxxxxxxx
38 41743 BSCMI Xxxxx Xxxxx
00 00000 XXXXX Xxxxxxxxx Town Center
65 42062 BSCMI Irmo Station
72 42382 BSCMI Xxx Xxxxxxx xx Xxxx Xxxx
00 00000 XXXXX 0000 Xxxxx Xxxxx Xxxxxx
000 00000 XXXXX 0000 Xxxxxxxxxx Xxxxxx
130 42295 BSCMI CVS - Sylacauga
Totals/Weighted Average
Sequence Number Street Address City State Zip Code Mortgage Rate (%)
--------------- ------------------------------------------------------- ------------ ------- -------- -----------------
4 0000-0000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 4.247%
10.1 0000 Xxxxxx Xxxx & 00000/00000 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
10.2 0000 Xxxx Xxxx Xxxxx Xxxxxx XX 00000
10.3 000 Xxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
10 Various Various Various Various 4.865%
18 00 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.056%
20 0000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000 5.020%
28 0000 Xxxxx Xxxxxx Xxxxxx XX 00000 4.597%
29.1 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
29.2 0000-0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
29.3 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
29.4 0000-0000 Xxxx 00xx Xxxxxx Xxxxxxx XX 00000
29.5 0000-0000 X. Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
29.6 0000-0000 Xxxx Xxxx Xxxx Xxxxx XX 00000
29.7 0000-0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
29.8 00 Xxxx Xxxxxx Xxxxx Xxxxxx XX 00000
29.9 000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
29.10 0000 XX Xxxxxxx 00 Xxxx Xxxxxxxxx XX 00000
29.11 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
29.12 0000-0000 0xx Xxxxxx Vincennes IN 47591
29 Various Various Various Various 5.300%
37 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 5.252%
38 0000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 4.956%
44 SWC of Xxxxx Xxxxx xxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 4.597%
65 0000 Xx. Xxxxxxx Xxxx Xxxx XX 00000 5.124%
72 0000-0000 Xxxx Xxxx Xxxxxxxxx Xx. Xxxxxxxx XX 00000 4.597%
76 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 5.448%
125 0000 Xxxxxxxxxx Xxxxxx Xxxxx XX 00000 5.347%
130 0 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.060%
Sequence Number Amortization Basis Original Balance Cut-off Balance Remaining Term To Stated Maturity (months)
--------------- ------------------ ---------------- --------------- ------------------------------------------
4 30/360 81,420,000 81,420,000 56
10.1 31,600,000 31,600,000
10.2 10,200,000 10,200,000
10.3 10,200,000 10,200,000
10 ACT/360 52,000,000 52,000,000 81
18 ACT/360 38,000,000 38,000,000 84
20 ACT/360 35,400,000 35,400,000 82
28 30/360 24,360,000 24,360,000 57
29.1 3,174,793 3,165,368
29.2 2,992,997 2,984,112
29.3 2,837,804 2,829,380
29.4 2,660,441 2,652,543
29.5 2,616,101 2,608,335
29.6 2,438,738 2,431,498
29.7 2,128,353 2,122,035
29.8 1,507,583 1,503,108
29.9 1,019,836 1,016,809
29.10 886,814 884,181
29.11 620,770 618,927
29.12 620,770 618,927
29 ACT/360 23,505,000 23,435,224 81
37 ACT/360 18,500,000 18,500,000 55
38 ACT/360 18,000,000 18,000,000 54
44 30/360 13,695,000 13,695,000 57
65 30/360 7,085,000 7,085,000 58
72 30/360 6,655,000 6,655,000 57
76 ACT/360 6,400,000 6,400,000 54
125 ACT/360 2,300,000 2,292,193 57
130 30/360 1,685,000 1,685,000 57
$328,927,417
Sequence Number Stated Maturity Date Due Date Monthly Payment Administrative Fee Rate Primary Servicing Fee Rate
--------------- --------------------- -------- --------------- ------------------------ --------------------------
4 12/1/2009 1st 0.031% 0.010%
10.1 1st
10.2 1st
10.3 1st
10 1/1/2012 1st 274,873 0.031% 0.010%
18 4/1/2012 1st 205,295 0.031% 0.010%
20 2/1/2012 1st 196,578 0.031% 0.010%
28 1/1/2010 1st 0.031% 0.010%
29.1 1st
29.2 1st
29.3 1st
29.4 1st
29.5 1st
29.6 1st
29.7 1st
29.8 1st
29.9 1st
29.10 1st
29.11 1st
29.12 1st
29 1/1/2012 1st 126,862 0.071% 0.050%
37 11/1/2009 1st 100,468 0.031% 0.010%
38 10/1/2009 1st 96,144 0.121% 0.100%
44 1/1/2010 1st 0.031% 0.010%
65 2/1/2010 1st 0.031% 0.010%
72 1/1/2010 1st 0.031% 0.010%
76 10/1/2009 1st 0.031% 0.010%
125 1/1/2010 1st 12,839 0.031% 0.010%
130 1/1/2010 1st 0.031% 0.010%
Sequence Number Master Servicing Fee Rate Ownership Interest Crossed Original Amortization (months) ARD Loan
--------------- -------------------------- ------------------ ------- ------------------------------ --------
4 0.020% Fee No 0 Yes
10.1 Fee No No
10.2 Fee No No
10.3 Fee No No
10 0.020% Fee No 360 No
18 0.020% Fee No 360 No
20 0.020% Fee No 360 No
28 0.020% Fee No 0 No
29.1 Fee No No
29.2 Fee No No
29.3 Fee No No
29.4 Fee No No
29.5 Fee No No
29.6 Fee No No
29.7 Fee No No
29.8 Fee No No
29.9 Fee No No
29.10 Fee No No
29.11 Fee No No
29.12 Fee No No
29 0.020% Fee No 360 No
37 0.020% Fee No 348 No
38 0.020% Fee No 360 No
44 0.020% Fee No 0 No
65 0.020% Fee No 0 No
72 0.020% Fee No 0 No
76 0.020% Fee No 0 No
125 0.020% Fee Xx 000 Xx
000 0.020% Fee No 0 No
Sequence Number Grace Period Loan Group
--------------- ------------ ----------
4 5 1
10.1 1
10.2 1
10.3 1
10 0 1
18 0 1
20 0 1
28 5 1
29.1 1
29.2 1
29.3 1
29.4 1
29.5 1
29.6 1
29.7 1
29.8 1
29.9 1
29.10 1
29.11 1
29.12 1
29 0 1
37 5 1
38 5 1
44 5 1
65 5 1
72 5 1
76 5 1
125 5 2
130 5 1
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 12 months. 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 BEAR XXXXXXX MORTGAGE LOANS
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REP NO. LOAN NO. LOAN NAME EXPLANATION
------- -------- --------- -----------
---------------------------------------------------------------------------------------
7
Condition of Property; 42062 Irmo Station Borrower is currently
Condemnation negotiating with the South
Carolina DOT with respect
to a contemplated
condemnation of
approximately 0.161 acres
of the Property.
---------------------------------------------------------------------------------------
14
Insurance 42235 Zurich American The lessee, Zurich
insurance American Insurance
Company, has elected to
self-insure against
the risks required by the
lease. The lease is
silent with respect to
requiring coverage for
business interruption or
rent loss insurance and
acts of terrorism,
however, the definition of
loss includes "damage by
fire or otherwise." In
no circumstance is rent
abatement or offset
permitted in the face of
casualty. In an event of
loss, Zurich is obligated
to rebuild and restore the
premises to its pre-loss
condition.
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23
Other Mortgage Liens 41699 0000 Xxxxxxxx Xxxx. The Mortgaged Property
secures a $2,500,000 B
Note.
42429 Terminal Tower Borrower has a tax
increment financing
mortgage or "TIF"
mortgage, payments for
which are included in the
tax escrow.
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28
Releases/Substitution of 41146 Parkway Portfolio The Loan provides for
Mortgaged Property prepayment upon payment of
125% of the allocated loan
amount together with the
applicable prepayment
premiums. The amount in
excess of par that is
received as a payment will
be applied to prepay the
remaining indebtedness.
Among other things, the
release shall not be
permitted if the DSCR or
the LTV tests are not
satisfied.
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34
Due on Sale 41699 0000 Xxxxxxxx Xxxx The Mortgaged Property
secures a $2,500,000 B
Note.
42283 Ashford Perimeter The Loan allows transfers
of tenant-in-common
interests in the Mortgaged
Property.
00000 Xxxxxxx Retail
Portfolio The related Mortgagor has
incurred mezzanine debt
that is secured by a
pledge of the interests in
the related Mortgagor's
parent.
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37
Tax Parcels 42295 CVS Sylacauga The mortgaged property
does not have a separate
tax parcel number and is
not separately assessed
for taxes, however Inland
Western Retail Real Estate
Trust has indemnified
Lender for failure of the
mortgaged property to have
a separate tax parcel
number or to be separately
assessed for taxes
---------------------------------------------------------------------------------------
42 42529 Terminal Tower The Loan has recourse
Recourse carveouts to the
Borrower. The Loan does
not have warm body
carveouts.
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