EXHIBIT 99.2
BCREI Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of October 13, 2005, between Barclays Capital Real Estate
Inc., as seller (the "Seller"), and Banc of America Commercial Mortgage Inc., as
purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans and (ii) certain mortgage loans transferred by Bank of America,
N.A. ("Bank of America") to the Purchaser pursuant to a mortgage loan purchase
and sale agreement, dated as of the date hereof between Bank of America and the
Purchaser, 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 Xxxxx'x Investors
Service, 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 October 1, 2005 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, as master servicer (the
"Master Servicer"), Midland Loan Services, Inc., as special servicer with
respect to the Mortgage Loans other than the 000 Xxxxx Xxxxxx Mortgage Loan (the
"Special Servicer"), LNR Partners, Inc., as special servicer with respect to the
000 Xxxxx Xxxxxx Mortgage Loan ("LNR"), and LaSalle Bank National Association,
as trustee (in such capacity, the "Trustee") and REMIC administrator, and ABN
AMRO Bank N.V., as fiscal agent. 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 ("BAS"), Barclays Capital Inc. ("BCI"), Deutsche Bank Securities
Inc. ("Deutsche") and Xxxxxx Xxxxxxx & Co. Incorporated ("MSI" and, collectively
with BAS, BCI and Deutsche, the "Underwriters") pursuant to an underwriting
agreement, dated as of September 30, 2005 (the "Underwriting Agreement"). BACM
intends to sell the remaining Classes of Certificates (the "Non-Registered
Certificates") to BAS and BCI, as initial purchasers (collectively, the "Initial
Purchasers"), pursuant to a certificate purchase agreement, dated as of
September 30, 2005 (the "Certificate Purchase Agreement"), among BACM, BAS and
BCI. The Registered Certificates are more fully described in the prospectus
dated September 30, 2005 (the "Basic Prospectus"), and the supplement to the
Basic Prospectus dated September 30, 2005 (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The privately offered Non-Registered
Certificates, other than the Class R-TM Certificates, are more fully described
in a private placement memorandum, dated September 30, 2005 (the "Memorandum"),
as it may be amended or supplemented at any time hereafter. The Class R-TM
Certificates are more fully described in a private placement memorandum, dated
October 12, 2005 (the "Class R-TM Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum, the Class R-TM
Memorandum and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement, dated as
of October 13, 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 an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans on or after the Cut-off
Date (including the Interest Deposit Amount) and which amount shall be payable
on or about October 13, 2005 in immediately available funds. The Purchaser shall
be entitled to all interest accrued on the Mortgage Loans on and after the
Cut-off Date and all principal payments received on the Mortgage Loans after the
Cut-off Date except for principal and interest payments due and payable on the
Mortgage Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, 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 documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) 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.
(e) 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(c). 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, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
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, then subject to Section 4(d), the
delivery requirements of Section 2(c) 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(c) 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 countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) 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.
(h) 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.
(i) 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 Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of 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. With
respect to the Torre Mayor Loan only, the Seller also represents and warrants
that no separate registration or other action is required under United States
federal or state securities laws as a result of the inclusion of such Mortgage
Loan in the Mortgage Pool in order to offer any Registered Certificate as
contemplated by the Prospectus, and agrees that any breach of this
representation and warranty shall constitute an incurable Material Breach.
(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 or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, 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)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (except in the case of the CP
Component 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,
servicing released 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 this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Breach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
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
Cross-Collateralized Mortgage Loan or part of 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 Cross-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 Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized 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 Cross-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, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 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 Cross-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 Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the 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, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgage Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
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.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(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.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
October 13, 2005, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
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 best of 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
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 Ernst & Young, LLP (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) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(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 State of Delaware, 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 any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memorandum,
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memorandum stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, compared the results
of their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to Xxxxx X.
XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other address as may hereafter
be furnished to the Seller in writing by the Purchaser; if to the Seller,
addressed to Barclays Capital Real Estate Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxx, telecopy number: (000) 000-0000 (with
copies to Xxx Xxxxxxxx at Barclays Capital Real Estate Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and Xxxx X. Xxxxx, Esq. at Cadwalader, Xxxxxxxxxx &
Xxxx LLP, One World Financial Center, New York, New York 10281) 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 AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO 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. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). 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. Tax.
(a) With respect to Loan No. 20050022 on the Mortgage Loan Schedule
(the "Mexico Loan"), the Seller hereby agrees to indemnify the Trust for any and
all costs and expenses incurred by the Trust, including interest on Advances,
Special Servicing Fees, Additional Trust Fund Expenses and the costs and
expenses of the Special Servicer in connection with, or arising out of the
enactment after the Closing Date of, any law of Mexico or any political
subdivision thereof changing in any way the laws relating to the taxation of
mortgages or security agreements or debts secured by mortgages or security
agreements or the interest of a lender or secured party in the property covered
thereby or interest charged under a loan or requiring any withholding of taxes
by a borrower in respect of a loan, which, in each case, applies to the Mexico
Loan (any such enacted legislation, the "Mexico Tax Legislation"); provided that
the foregoing indemnification shall not apply to Special Servicing Fees and
other costs and expenses incurred by the Special Servicer that (i) are incurred
as a result of the failure of the related mortgagor under the Mexico Loan to
make certain "gross-up" payments pursuant to the terms of the Mexico Loan loan
agreement (such payments, the "Mexico Gross-Up Payments") and (ii) are incurred
prior to the date that the failure of the related mortgagor to make such Mexico
Gross-Up Payment shall constitute a Servicing Transfer Event with respect to the
Mexico Loan in accordance with clause (iii) of the definition of "Servicing
Transfer Event".
(b) As specified in Section 3.33(a) of the Pooling and Servicing
Agreement, the Seller will have the option, exercisable in its sole discretion,
to make Mexico Gross-Up Payments that are required to be made by the mortgagor
under the terms of the loan agreement for the Mexico Loan, to the extent the
mortgagor fails to make such payments. As specified in Section 3.33(b) of the
Pooling and Servicing Agreement, the Seller will have the option, exercisable in
its sole discretion, to purchase the Mexico Loan upon the enactment of the
Mexico Tax Legislation, so long as an event of default under the Mexico Loan has
occurred and is continuing.
The Seller further represents that as of the Closing Date and as of
any date thereafter on which the Mexico Loan is included as part of the Trust
Fund (i) the obligation of the mortgagor under the Mexico Loan to make the
Mexico Gross-Up Payments and (ii) the ability of the mortgagee under such loan
agreement to accelerate the maturity of the Mexico Loan as a result of the
mortgagor's failure to make any Mexico Gross-Up Payments required by such loan
agreement (the preceding clauses (i) and (ii) are hereinafter referred to
collectively as the "Mexico Representation Remedies"), in each case, are
enforceable in accordance with their terms under such loan agreement, except as
such enforcement may be limited by (a) anti-deficiency laws or bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, and by
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) (the preceding clauses (a) and
(b) are hereinafter referred to collectively as the "Mexico Representation
Qualifications"); provided that the Mexico Representation Qualifications shall
not apply to the foregoing representation regarding the enforceability of the
Mexico Representation Remedies to the extent that the enforceability of such
remedies is prohibited solely due to (1) the Mexico Tax Legislation expressly
prohibiting the exercise of such remedies or (2) a final, non-appealable
determination by a court of competent jurisdiction that the Mexico Tax
Legislation prohibits the exercise of such remedies.
SECTION 21. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 22. 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 23. 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.
BARCLAYS CAPITAL REAL ESTATE INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan
Number Number Loan Seller Property Name Street Address
------------------------------------------------------------------------------------------------------------------------------------
1 20050796 Barclays 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
10 20050022 Barclays Torre Mayor 000 Xxxxx xx xx Reforma
11 20051048 Barclays Polo Club Apartments 0000 Xxxxx Xxxxxxx Xxxxxxxxx
18 20050837 Barclays i.park on Xxxxxx 00-00 Xxxxx Xxxxxx
19 20050709 Barclays Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx
20 20051082 Barclays Xxx Xxxxxxxxx Xxxxxxx 0000 Xxx Xxxxxxxxx Xxxxxx
23 20050917 Barclays Xxxxxxxxxx Shopping Center 000 Xxxx Xxxxx Xxxxxxxx Xxxxxx
29 20051135 Barclays Arboretum Apartments 0000 Xxxxxxx Xxxxxx
30 20050892 Xxxxxxxx Xxxxx Xxxx & Xxxx 0000 Xxxxxx X
32 20051162 Barclays Xxxxxxxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxxx Avenue
39 20050804 Barclays Huntington Parking Garage 000 Xxxxxxx Xxxxxx
43 20051188 Barclays Marriot Fort Xxxxx Indiana 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxx
45 20050946 Barclays Residence Inn - Oakbrook 000 Xxxxx Xxxxxxxxx
50 20051041 Barclays Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxx
51 20051153 Barclays Xxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx 00000 Coastal Highway
54 20051054 Barclays Fox Fire Apartments 4110-4380 Morning Sun Drive & 0000-0000
Xxxxx Xxxxxxxx Xxxxxx
56 20051072 Barclays Hampton Inn-Sarasota 0000 Xxxxxxxxxxx Xxxxxxxxx
58 20051059 Barclays Hilton Garden Inn Sarasota-Bradenton Airport 0000 Xxxxx Xxxxxxx Xxxxx
60 20050896 Barclays Hilton Garden Inn - Syracuse 0000 Xxxx Xxxxx Xxxx
61 20051074 Barclays Holiday Inn Express-Siesta Key 0000 Xxxxx Xxxxxxx Xxxxx
66 20051075 Barclays AmericInn Hotel & Suites 0000 Xxxxxxxxxx Xxxx
68 20050945 Barclays Xxxxxxx Xxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx
72 20050960 Barclays Mill Creek LA Fitness 00000 Xxxx Xxxxxx
73 20051173 Barclays Chateau MHC 0000 Xxxxxxxx Xxxx
77 20051124 Barclays Modesto MHC 0000 XxXxxxx Xxxxxx
81 20051052 Barclays Xxxxxxxxx Xxxxx 0 Xxxxxxx Xxxxx
88 20050463 Barclays Xxxxxxxxxx Xxxxxx Xxxx 000 Xxxxx 00xx Xxxxxx
89 20051122 Barclays CVS - Waldorf, MD 0000 Xxxxxxxxxxx Xxxx
96 20050793 Barclays Xxxxx Xxxxx Xxxxxxx Xxxxxx 00000 Xxxxxxxxx 000xx Xxxxxx
99 20050827 Barclays Xxxxxxx Xxxx Xxx Xxxxxx 0 Xxxxxxxxx Xxxxxx
103 20050991 Barclays Elliot Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxx Xxxxx Drive
104 20051164 Barclays Rite Aid Garden City 29447 Ford Road
106 20051020 Barclays AutoZone - Irmo, SC 0000 Xxxxx Xxxxx Xxxx
Total
(TABLE CONTINUED)
Sequence Loan Zip Mortgage Amortization Original Cut-off
Number Number City State Code Rate (%) Basis Balance Balance
------------------------------------------------------------------------------------------------------------------------------------
1 20050796 Xxx Xxxx XX 00000 5.440% Actual/360 $116,000,000 $116,000,000
10 20050022 Mexico City Mexico City 7.546% Actual/360 55,000,000 55,000,000
11 20051048 Xxx Xxxxx XX 00000 5.016% Actual/360 48,000,000 48,000,000
18 20050837 Xxxxxxx XX 00000 5.530% Actual/360 32,000,000 31,965,171
19 20050709 Xxxxx Xxxxx XX 00000 5.530% Actual/360 30,400,000 30,309,680
20 20051082 Xxxxxxxx XX 00000 4.950% Actual/360 30,000,000 30,000,000
23 20050917 Xxxxxxxxxx XX 00000 5.105% Actual/360 28,125,000 28,125,000
29 20051135 Xxxxxxxxx XX 00000 5.362% Actual/360 19,000,000 19,000,000
30 20050892 Xxxxxxxx XX 00000 5.460% Actual/360 19,000,000 18,960,892
32 20051162 Xxxxxxxxx XX 00000 5.283% Actual/360 18,050,000 18,050,000
39 20050804 Xxxxxxxxx XX 00000 5.770% Actual/360 16,000,000 15,954,627
43 20051188 Xxxx Xxxxx XX 00000 5.430% Actual/360 14,000,000 14,000,000
45 20050946 Xxx Xxxxx XX 00000 5.440% Actual/360 13,000,000 12,979,567
50 20051041 Xxxxxxxxxxxx XX 00000 5.170% Actual/360 11,600,000 11,600,000
51 20051153 Xxxxx Xxxx XX 00000 5.260% Actual/360 11,300,000 11,300,000
54 20051054 Xxxxxxxx Xxxxxxx XX 00000 & 80907 5.490% Actual/360 10,860,000 10,860,000
56 20051072 Xxxxxxxx XX 00000 5.350% Actual/360 9,824,000 9,824,000
58 20051059 Xxxxxxxx XX 00000 5.380% Actual/360 9,440,000 9,440,000
60 20050896 Xxxx Xxxxxxxx XX 00000 5.400% Actual/360 8,700,000 8,686,243
61 20051074 Xxxxxxxx XX 00000 5.330% Actual/360 8,510,000 8,510,000
66 20051075 Xxxxxxxx XX 00000 5.350% Actual/360 7,895,000 7,895,000
68 20050945 Xxxxxxx XX 00000 5.790% Actual/360 7,250,000 7,239,196
72 20050960 Xxxx Xxxxx XX 00000 5.310% Actual/360 6,500,000 6,500,000
73 20051173 Xxxxxxx XX 00000 5.013% Actual/360 6,400,000 6,400,000
77 20051124 Xxxxxxx XX 00000 5.042% Actual/360 5,750,000 5,750,000
81 20051052 Xxxxxxxxxxx XX 00000 5.100% Actual/360 5,000,000 4,994,103
88 20050463 Xxxxxxxxxxxx XX 00000 6.180% Actual/360 4,100,000 4,096,056
89 20051122 Xxxxxxx XX 00000 5.390% Actual/360 4,100,000 4,095,419
96 20050793 Xxxxxxxx XX 00000 5.070% Actual/360 3,350,000 3,350,000
99 20050827 Xxxxxxx XX 00000 5.550% Actual/360 2,700,000 2,700,000
103 20050991 Xxxxxxx XX 00000 5.530% Actual/360 1,700,000 1,696,553
104 20051164 Xxxxxx Xxxx XX 00000 5.330% Actual/360 1,525,000 1,525,000
106 20051020 Xxxx XX 00000 5.500% Actual/360 1,237,500 1,237,500
$566,044,007
(TABLE CONTINUED)
Remaining
Term to Primary Master
Stated Stated Administrative Servicing Servicing
Sequence Loan Maturity Maturity Due Monthly Fee Fee Fee Ownership
Number Number (months) Date Date Payment Rate Rate Rate Interest
------------------------------------------------------------------------------------------------------------------------------------
1 20050796 59 9/1/2010 1st $533 ,170 0.041% 0.020% 0.020% Fee
10 20050022 119 9/1/2015 1st 386,302 0.041% 0.020% 0.020% Fee
11 20051048 119 9/1/2015 1st 258,144 0.041% 0.020% 0.020% Fee
18 20050837 119 9/1/2015 1st 182,295 0.041% 0.020% 0.020% Fee
19 20050709 117 7/1/2015 1st 173,181 0.041% 0.020% 0.020% Fee
20 20051082 119 9/1/2015 1st 160,131 0.041% 0.020% 0.020% Fee
23 20050917 118 8/1/2015 1st 152,791 0.041% 0.020% 0.020% Fee
29 20051135 119 9/1/2015 1st 106,241 0.041% 0.020% 0.020% Leasehold
30 20050892 118 8/1/2015 1st 107,404 0.041% 0.020% 0.020% Fee
32 20051162 120 10/1/2015 1st 100,042 0.041% 0.020% 0.020% Fee
39 20050804 118 8/1/2015 1st 100,850 0.041% 0.020% 0.020% Fee/Leasehold
43 20051188 120 10/1/2015 1st 85,388 0.041% 0.020% 0.020% Fee
45 20050946 119 9/1/2015 1st 79,366 0.041% 0.020% 0.020% Leasehold
50 20051041 118 8/1/2015 1st 63,482 0.041% 0.020% 0.020% Fee
51 20051153 119 9/1/2015 1st 62,469 0.041% 0.020% 0.020% Fee/Leasehold
54 20051054 120 10/1/2015 1st 61,594 0.041% 0.020% 0.020% Fee
56 20051072 59 9/1/2010 1st 57,375 0.041% 0.020% 0.020% Fee
58 20051059 59 9/1/2010 1st 55,304 0.041% 0.020% 0.020% Fee
60 20050896 119 9/1/2015 1st 52,907 0.041% 0.020% 0.020% Fee
61 20051074 59 9/1/2010 1st 49,598 0.041% 0.020% 0.020% Fee
66 20051075 59 9/1/2010 1st 46,109 0.041% 0.020% 0.020% Fee
68 20050945 119 9/1/2015 1st 45,786 0.041% 0.020% 0.020% Fee
72 20050960 118 8/1/2015 1st 36,135 0.041% 0.020% 0.020% Fee
73 20051173 120 10/1/2015 1st 34,407 0.041% 0.020% 0.020% Fee
77 20051124 119 9/1/2015 1st 31,015 0.041% 0.020% 0.020% Fee
81 20051052 119 9/1/2015 1st 27,147 0.041% 0.020% 0.020% Fee
88 20050463 179 9/1/2020 1st 25,059 0.041% 0.020% 0.020% Fee
89 20051122 119 9/1/2015 1st 22,997 0.041% 0.020% 0.020% Fee
96 20050793 117 7/1/2015 1st 18,127 0.041% 0.020% 0.020% Fee
99 20050827 118 8/1/2015 1st 15,415 0.041% 0.020% 0.020% Fee
103 20050991 118 8/1/2015 1st 9,684 0.041% 0.020% 0.020% Fee
104 20051164 180 10/1/2020 1st 12,386 0.121% 0.100% 0.020% Fee
106 20051020 120 10/1/2015 1st 7,026 0.041% 0.020% 0.020% Fee
(TABLE CONTINUED)
Original
Sequence Loan Amortization XXX Xxxxx
Number Number Crossed (months) Loan Period
--------------------------------------------------------------------------------
1 20050796 0 No 5
10 20050022 360 No 5
11 20051048 360 No 5
18 20050837 360 No 5
19 20050709 360 No 5
20 20051082 360 No 5
23 20050917 360 No 5
29 20051135 360 No 5
30 20050892 360 No 5
32 20051162 360 No 5
39 20050804 300 No 5
43 20051188 300 No 5
45 20050946 300 No 5
50 20051041 360 No 5
51 20051153 360 No 5
54 20051054 360 No 5
56 20051072 324 No 5
58 20051059 324 No 5
60 20050896 300 No 5
61 20051074 324 No 5
66 20051075 324 No 5
68 20050945 300 No 5
72 20050960 360 No 5
73 20051173 360 No 5
77 20051124 360 No 5
81 20051052 360 No 5
88 20050463 360 No 5
89 20051122 360 No 5
96 20050793 360 No 5
99 20050827 360 No 5
103 20050991 360 No 5
104 20051164 180 No 5
106 20051020 360 No 5
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. 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. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
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 related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) 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; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property. An assignment of each UCC Financing Statement
relating to the Mortgage Loan has been delivered by Seller in blank
which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which
such UCC Financing Statement was filed. Each Mortgage Loan and the
related Mortgage (along with any security agreement and UCC
Financing Statement), together with applicable state law, contain
customary and enforceable provisions such as to render the rights
and remedies of the holders thereof adequate for the practical
realization against the personal property described above, and the
principal benefits of the security intended to be provided thereby;
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 related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or any other personal
property to the extent that the possession or control of such items
or actions other than the filing of the UCC Financing Statement as
required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge 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 and to the Seller's knowledge as of the Cut-off Date: (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 referred to in Paragraph (13) 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 use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance 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, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
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 for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, 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 (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Moody's or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. 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 30 days' prior written notice to the mortgagee (or,
with respect to non-payment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. 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 after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. 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 (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more environmental site
assessments meeting the requirements of the American Society for
Testing and Materials in effect at the time the related report was
or the related reports were prepared covering all environmental
hazards typically assessed for similar properties including use,
type and tenants of the Mortgaged Property (an "Environmental
Report"), or an update of such an assessment, was performed by an
experienced licensed (to the extent required by applicable state
law) environmental consulting firm with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination
of such Mortgage Loan and thereafter updated such that, (a) such
Environmental Report is dated no earlier than twelve months prior to
the Closing Date, (b) a copy of each such Environmental Report has
been delivered to the Purchaser; and (c) either: (i) no such
Environmental Report provides that as of the date of the report
there is a material violation of any applicable environmental laws
with respect to any 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) a party not related to the related Mortgagor
with financial resources reasonably adequate to cure the subject
violation in all material respects was identified as the responsible
party for such condition or circumstance, (B) the related Mortgagor
was required to provide additional security adequate to cure the
subject violation in all material respects and to obtain an
operations and maintenance plan, (C) such conditions or
circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant
recommended no further investigation or remediation, or recommended
only the implementation of an operations and maintenance program,
which the Mortgagor is required to do, (D) there exists an escrow of
funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (E) the related Mortgaged Property is
insured under a policy of insurance against losses arising from such
circumstances and conditions, (F) the circumstance or condition has
been fully remediated, (G) the related Mortgagor provided a "no
further action" letter or other evidence acceptable to the Seller
and that would be acceptable to a reasonably prudent lender, that
applicable federal, state or local governmental authorities had no
current intention of taking any action, and are not requiring any
action, in respect of such condition or circumstance, (H) the
expenditure of funds reasonably estimated to be necessary to effect
such remediation is the lesser of (a) 2% of the outstanding
principal balance of the related Mortgage Loan and (b) $200,000, (I)
the related Mortgagor or another responsible party is currently
taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental
regulatory authority, or (J) a responsible party with financial
resources reasonably adequate to cure the violation provided a
guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation. To
the Seller's actual knowledge and without inquiry beyond the related
Environmental Report, there are no significant or material
circumstances or conditions with respect to any Mortgaged Property
not revealed in any such Environmental Report, where obtained, or in
any Mortgagor 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 other Loan Document in the
Mortgage File, for each Mortgage Loan encumbering the Mortgaged
Property requires the related Mortgagor to comply and cause the
Mortgaged Property to comply with all applicable federal, state and
local environmental laws and regulations. The Seller has not taken
any action which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws pertaining to
environmental hazards or which could subject the Seller or its
successors and assigns to liability under such laws. Each Mortgagor
represents and warrants in the related Loan Documents generally to
the effect that except as set forth in certain specified
environmental reports and to the best of its knowledge that as of
the date of origination of such Mortgage Loan, there were no
hazardous materials on the related Mortgaged Property, and that the
Mortgagor will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials, in any manner which
violates federal, state or local laws, ordinances, regulations,
orders, directives, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor
(or an affiliate thereof) has agreed to indemnify, defend and hold
the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a
breach of environmental representations, warranties or covenants
given by the Mortgagor in connection with such Mortgage Loan,
generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization or for the negative amortization of interest, except
that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated
Repayment Date and continuing until such Mortgage Loan is paid in
full, (a) additional interest shall accrue and may be compounded
monthly and shall be payable only after the outstanding principal of
such Mortgage Loan is paid in full, and (b) subject to available
funds, a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal
balance thereof in addition to the principal portion of the related
Monthly Payment. Neither the Seller nor any affiliate thereof has
any obligation to make any capital contribution to the Mortgagor
under the Mortgage Loan or otherwise nor holds any equity interest
in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since [_____], 2005. The
Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgage Loan
or materially interferes with the security intended to be provided
by such Mortgage. The terms of the related Mortgage do not provide
for release of any material portion of the Mortgaged Property from
the lien of the Mortgage except (a) in consideration of payment
therefor equal to not less than 125% of the related allocated loan
amount of such Mortgaged Property specifically set forth in the
related Loan Documents, (b) upon payment in full of such Mortgage
Loan, (c) Mortgage Loans which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more
of such Mortgaged Properties) "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to pay
the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) when due, and in the case of
ARD Loans, assuming the Anticipated Repayment Date is the Stated
Maturity Date. Further, the Mortgage or other related Loan Document
contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities
are sufficient to make all such scheduled payments when due. To
Seller's actual knowledge, defeasance under the Mortgage Loan is
only for the purpose of facilitating the release of the Mortgaged
Property and not as a part of an arrangement to collateralize a
REMIC with obligations that are not real estate mortgages. With
respect to each Defeasance Loan, the related Mortgage or other
related Loan Document provides that the related Mortgagor shall (or
permits the mortgagee to require the Mortgagor to) (a) pay all
Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions reasonably required by the mortgagee under the
related Loan Documents, including, if applicable, a REMIC opinion
and a perfection opinion and any applicable rating agency letters
confirming no downgrade or qualification of ratings on any classes
in the transaction. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the
Mortgage Loan or the related documents require (or permit the
mortgagee to require) confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or
withdrawal of the rating assigned to any securities backed by the
Mortgage Loan and require (or permit the mortgagee to require) the
Mortgagor to pay any Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof 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, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide, or
which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) 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 Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor 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 and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20 million shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided 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 written instruments which are a part of the
related Mortgage File;
(b) 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
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee 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 written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded 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 under such Mortgage Loan 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 such
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; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage
Loans secured by Ground Leases, each of the Mortgagors (or its
affiliates) has title in the fee simple interest in each related
Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal; if any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such Mortgage Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified
margin not less than 2 percent (2%); the Anticipated Repayment Date
of any such Mortgage Loan is not less than 7 years from the date of
origination; and after the Anticipated Repayment Date, the Loan
Documents provide that excess cash flow after payment of expenses,
including scheduled interest and capital expenditures approved by
the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required
under applicable law as of the date of origination, and necessary
for the enforceability or collectability of the Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No
Financing for Incomplete Improvements. No Mortgage Loan, other than
an ARD Loan (and then only after the Anticipated Repayment Date for
such ARD Loan), provides for the negative amortization of interest.
Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the purpose of
financing the construction of incomplete improvements on the related
Mortgaged Property other than tenant improvements.
(49) No Fraud. Neither the Seller, the originator, nor any
employee or agent of the Seller or the originator has participated
in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Mortgagor or guarantor is guilty of
defrauding or making an intentional material misrepresentation to
the Seller with respect to the origination of the Mortgage Loan, the
Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for delinquent Monthly Payments no longer
than 10 days from the applicable Due Date other than as disclosed in
the Mortgage Loan Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the
appraisal or a supplemental letter from the appraiser states that
the appraisal satisfies the appraisal guidelines set forth in Title
XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (as amended), all as in effect on the date the Mortgage
Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the
Prospectus Supplement, (a) no Mortgagor is the Mortgagor with
respect to more than one Mortgage Loan and (b) to the Seller's
knowledge, no group of Mortgage Loans with affiliated mortgagors
have an aggregate principal balance equaling more than
$47,541,676.34.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and (ii) has
delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the
Seller's possession related to such Mortgaged Property,
in each case with respect to (i) and (ii) to the extent
required by such policy or to the extent the failure to
make any such disclosure or deliver any such report
would materially and adversely affect the Purchaser's
ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
Barclays Capital - BACM 2005-5
Schedule IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Mortgage Loan Exception
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No Holdbacks; Improvements Complete or
Exceptions to Representation (4) Escrows Established.
--------------------------------------------------------------------------------
Torre Mayor (Loan No. 20050022) Lender is obligated to fund up to
$20,000,000 in a single additional advance,
upon the borrower's satisfaction of various
conditions specified in the Loan Documents.
However, Lender's obligations to make such
advances are not being transferred to the
Trust and instead will be retained by
Barclays Capital Real Estate Inc. The
additional advance, if funded, will be
subordinated to both the A-1 and A-2 notes
(aggregating $110,000,000) as well as the
$20,000,000 B Note.
--------------------------------------------------------------------------------
Exceptions to Representation (13) Title Insurance.
--------------------------------------------------------------------------------
Torre Mayor (Loan No. 20050022) The title insurance policy is issued by
Grupo Nacional Provincial S.A. in the
customary Mexican form. First American
Title Insurance Company has assumed
liability under the policy.
--------------------------------------------------------------------------------
Exceptions to Representation (14) Insurance.
--------------------------------------------------------------------------------
000 Xxxxx Xxxxxx (Loan No. Borrower is required to maintain coverage
20050796) against acts of terrorism subject to a cap
equal to the lesser of (i) an amount equal to
25% of the property insurance premium,
provided that the Borrower obtains a "no
downgrade" letter from each rating agency
with respect to such insurance and (ii)
$250,000 per annum.
Polo Club Apartments (Loan No. Borrower is not required to maintain
20051048) coverage against acts of terrorism unless
Lender reasonably determines that the
Mortgaged Property is at risk for terrorism
or terrorist acts and terrorism coverage is
then available at a cost not to exceed 120%
of the then cost of a casualty policy
identical in all respects other than for the
terrorism coverage.
Super Stop and Shop (Loan No. The tenant at the Mortgaged Property is
20050892) currently carrying coverage against acts of
terrorism, however, under its lease with the
borrower, it is not required to maintain such
coverage. Under the loan agreement, the
borrower's obligations with respect to
insurance are satisfied so long as the tenant
is maintaining the insurance required
pursuant to its lease.
Scarsdale Fairway Apartments Borrower is not required to maintain
(Loan No. 20051162) coverage against acts of terrorism at a cost
in excess of 15% of the premiums for the
other insurance coverages required under the
loan agreement.
FoxFire Apartments (Loan No. Borrower is not required to maintain
20051054) coverage against acts of terrorism unless
Lender reasonably determines that the
Mortgaged Property is at risk for terrorism
or terrorist acts and terrorism coverage is
then available at a cost not to exceed 120%
of the then cost of a casualty policy
identical in all respects other than for the
terrorism coverage.
Champlain Plaza (Loan No. The loan agreement does not expressly
20051052) require insurance for acts of terrorism, but
there is a "catch all" provision that permits
Lender to require insurance against "other
insurable hazards or casualties which at the
time are commonly insured against in the case
of property similarly situated, due regard
being given to the height and type of
buildings, their construction, location, use
and occupancy."
Elliot Ranch Retail Center (Loan Borrower is required to maintain coverage
No. 20050991) against acts of terrorism in the amount that
is available for an annual premium not in
excess of $5,000.
CVS -- Waldorf MD (Loan No. Borrower is not required to maintain
20051122) coverage against acts of terrorism.
--------------------------------------------------------------------------------
Exceptions to Representation (22) Whole Loan.
--------------------------------------------------------------------------------
Torre Mayor (Loan No. 20050022) The Mortgage Loan is interest only for the
first 12 months, with principal and interest
payments commencing on May 1, 2006.
The Torre Mayor Mortgage Loan is a whole
loan, however it is one of two senior
promissory notes in a four note structure,
consisting of two senior notes in the
original principal amount of $55,000,000
each, a subordinate B note in the original
principal amount of $20,000,000, and a
subordinate C note under which future
advances up to $20,000,000 may be made upon
satisfaction of various conditions.
000 Xxxxx Xxxxxx (Loan No. The Mortgage Loan is interest only until the
20050796) maturity date.
Polo Club Apartments (Loan No. The Mortgage Loan is interest only for the
20051048) first 48 months, with the first principal
and interest payment occurring on October 1,
2009.
New Hampshire Commons (Loan No. The Mortgage Loan is interest only for the
20051082) first 36 months, with the first
principal and interest payment occurring on
October 1, 2008.
Xxxxxxxxxx Shopping Center (Loan The Mortgage Loan is interest only for the
No. 20050917) first 48 months, with the first principal and
interest payment occurring on September 1,
2009.
Arboretum Apartments (Loan No. The Mortgage Loan is interest only for the
20051135) first 24 months, with the first principal and
interest payment occurring on October 1,
2007.
Scarsdale Fairway Apartments The Mortgage Loan is interest only for the
(Loan No. 20051162) first 60 months, with the first principal and
interest payment occurring on November 1,
2010.
Stone Ridge Apartments (Loan No. The Mortgage Loan is interest only for the
20051041) first 24 months, with the first principal and
interest payment occurring on September 1,
2007.
Ocean City Square Shopping Center The Mortgage Loan is interest only for the
(Loan No. 20051153) first 24 months, with the first principal
and interest payment occurring on October 1,
2007.
Hampton Inn -- Sarasota, Hilton The Mortgage Loan is interest only for the
Garden Inn - Sarasota, Holiday first 30 months, with the first principal Inn
Express, Sarasota and AmericInn, and interest payment occurring on April 1,
Sarasota (Loan Nos. 2008.
20051072, 20051059, 20051074,
20051075)
Mill Creek LA Fitness (Loan No. The Mortgage Loan is interest only for the
20050960) first 12 months, with the first principal
and interest payment occurring on September
1, 2006.
Chateau Mobile Home Park (Loan The Mortgage Loan is interest only for the
No. 20051173) first 24 months, with the first principal
and interest payment occurring on November
1, 2007.
Modesto Mobile Home Park (Loan The Mortgage Loan is interest only for the
No. 20051124) first 24 months, with the first principal
and interest payment occurring on October 1,
2007.
Totem Crest Medical Office (Loan The Mortgage Loan is interest only for the
No. 20050793) first 12 months, with the first principal
and interest payment occurring on August 1,
2006.
Central Park Six Office (Loan No. The Mortgage Loan is interest only for the
20050827) first 12 months, with the first principal
and interest payment occurring on September
1, 2006
--------------------------------------------------------------------------------
Exception to Representation (27) Defeasance.
--------------------------------------------------------------------------------
000 Xxxxx Xxxxxx (Loan No. In calculating the scheduled debt service
20050796) payments required to be defeased, the
maturity date is assumed to be the date on
which the Mortgage Loan is open to repayment
(i.e., the Mortgage Loan is assumed to be
repaid in full on the first day of the third
month preceding the maturity date).
--------------------------------------------------------------------------------
Exception to Representation (30) Single-Purpose Entity.
--------------------------------------------------------------------------------
Torre Mayor (Loan No. 20050022) Borrowers do not have independent directors
but the unanimous consent of the members of
each Borrower's Technical Committee is
required for filing bankruptcy. Upon an
event of default under the Mortgage Loan,
Lender would have the right to appoint three
of the four members of the Technical
Committee of each Borrower. Because
Borrowers are Mexican entities, a
non-consolidation opinion under U.S. law was
not obtained, but Borrowers' Mexican counsel
delivered an opinion that under Mexican law,
the assets of Borrower trusts were separate
and distinct from the assets of the settlors
and the beneficiaries of Borrower trusts,
and that a bankruptcy of any settlor or any
of the beneficiaries would not be
adjudicated insolvent because of an
insolvency of any settlor or any beneficiary.
Arboretum Apartments (Loan No. Borrower does not have an independent
20051135) director or manager. No non-consolidation
opinion was delivered in connection with the
Mortgage Loan.
Super Stop and Shop and Borrower does not have an independent
Huntington Parking Garage (Loan director or manager.
Nos. 20050892)
--------------------------------------------------------------------------------
Exception to Representation (40) Borrower Organization.
--------------------------------------------------------------------------------
Torre Mayor (Loan No. 20050022) Each Borrower under the Mortgage Loan is a
Mexican business trust.
--------------------------------------------------------------------------------
Exception to Representation (41) Non-Recourse Exceptions.
--------------------------------------------------------------------------------
Borrower and the non-recourse carveout
000 Xxxxx Xxxxxx (Loan No. guarantor are liable for the
20050796) "misappropriation" but not the
"misapplication" of rents, insurance
proceeds and condemnation awards.
Torre Mayor (Loan No. 20050022) Borrower is liable for fraud or "intentional
material misrepresentation." Also, the
recourse carveout guarantor is not a natural
person but an entity controlled by the
sponsor of the transaction and is required
to maintain a net worth of at least
$25,000,000.
Arboretum Apartments (Loan No. As a result of the tenant-in-common
20051135) structure, each Borrower is liable under its
recourse carveout guaranty only to the extent
that the event that caused the liability
under the guaranty was caused by such
Borrower.
Hampton Inn -- Sarasota, Hilton The recourse carveout guarantor, Xxxxxx
Garden Inn - Sarasota, Holiday Hotel Investors IV, L.P. is not a natural
Inn Express -- Sarasota and person but owns an interest in Borrower and
AmericInn --Sarasota (Loan Nos. other assets.
20051072, 20051059, 20051074,
20051075)
Washington Square West (Loan No. The recourse carveout guarantor, LAC
20050463) Properties Operating Partnership, L.P., is
not a natural person but owns an interest in
Borrower and other assets.
--------------------------------------------------------------------------------
Exception to Representation (42) Separate Tax Parcels.
--------------------------------------------------------------------------------
Polo Club Apartments (Loan No.
20051048) The Mortgaged Property includes an access
easement across an adjoining property.
Borrower is obligated to pay a percentage of
the property taxes attributable to the
easement, but the easement parcel is not
taxed separately from the rest of the
adjoining property. Borrower has a right
under the easement agreement to apply for
separate tax parcel status for the easement
parcel and has made application for such
separate tax parcel status.
Marriott Fort Xxxxx Indiana (Loan A portion of the Mortgaged Property is
No. 20051188) contained in the tax parcel designation of
the adjoining property, which is owned by an
affiliate of Borrower. Borrower is applying
for administrative approval to revise the tax
parcel designation. Lender has escrowed 12
months taxes on the adjacent parcel.
Hilton Garden Inn Sarasota (Loan Borrower is required to subdivide the parcel
No. 20051059) of which the Mortgaged Property is a part to
create a separate tax parcel for the
Mortgaged Property from a larger parcel that
includes two development sites, which will be
transferred to an affiliate. Lender is
escrowing taxes for the entire parcel and
will continue to do so until the separation
is complete.
--------------------------------------------------------------------------------
Exception to Representation (43) Financial Statements.
--------------------------------------------------------------------------------
Polo Club Apartments (Loan No. Borrower is only required to deliver an
20051048) audited annual operating statement, balance
sheet and profit and loss statement upon the
occurrence of an Event of Default or a debt
service coverage ratio of 1.05x or less for
six consecutive months.
i.park on Xxxxxx (Loan No. Borrower's annual financial reporting must
20050837) be prepared by an independent certified
public accountant reasonably acceptable to
Lender, but is not required to be audited.
Lender may have an audit conducted, at
Borrower's expense, after the occurrence of
an Event of Default.
CVS -- Waldorf MD (Loan No. Borrower is only required to deliver
20051122) operating statements on a semi-annual and
annual basis, not quarterly.
--------------------------------------------------------------------------------
Exception to Representation (44) Fee/Leasehold Properties.
--------------------------------------------------------------------------------
Huntington Parking Garage (Loan There are three separate ground leases
No. 20050804) relating to approximately 15% of the parking
spaces at the Mortgaged Property
(collectively, the "Ground Lease").
Representation 44(b):
The Ground Lease does not expressly provide
that it shall remain prior to any mortgage or
other lien upon the fee estate.
Representation 44(c): Borrower's interest in
the Ground Lease is assignable without the
consent of the lessor, but such assignment is
conditioned upon the assumption of the Ground
Lease by the assignee.
Representation 44(e): The lessor is required
to give the leasehold mortgagee notice of any
defaults by the tenant under the lease, but
the effectiveness of any such notice is not
expressly conditioned upon receipt of such
notice.
Representation 44(f):
The Ground Lease does not provide that all
the rights of Borrower thereunder may be
exercised by Lender.
Representation 44(h):
The Ground Lease does not require the lessor
to enter into a new lease with Lender upon
the termination of the Ground Lease for any
reason.
Representation 44(k):
The Ground Lease does not provide that it
cannot be amended without the prior written
consent of Lender.
Borrower has obtained an estoppel certificate
and agreement (the "Agreement") under one of
the ground leases, which addresses the issues
raised in (c), (e), (f), (h) and (k) above.
Under the Loan Documents, Borrower and the
recourse carveout guarantor have recourse
liability if any representations made by
Borrower with respect to the Ground Lease is
not true, if lessor fails to enter into a new
lease upon termination of the Lease for any
reason, including rejection of the Ground
Lease in bankruptcy, if Borrower fails to
comply with any covenant regarding the Ground
Lease, if any lessor asserts that any of the
facts set forth in the Agreement are untrue
or any of the agreements made therein are
ineffective.
Residence Inn - Oakbrook (Loan Representation 44(j):
No. 20050946)
The Mortgaged Property must be used as a
Marriott Residence Inn hotel, or if the
Marriott franchise agreement is terminated,
as a hotel of a comparable or higher class,
until 2011.
