EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of April 14, 2004, between Bank of America, N.A., as
seller (the "Seller" or "Bank of America") and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans and (ii) certain mortgage loans transferred by Bear Xxxxxxx
Commercial Mortgage, Inc. ("BSCMI") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between BSCMI and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by 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 April 1, 2004 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, N.A., as master servicer
(the "Master Servicer"), Midland Loan Services, Inc., as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee") and as REMIC administrator and ABN AMRO Bank N.V., as
fiscal agent (the "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 ("Banc of America"), Bear, Xxxxxxx & Co Inc. ("BSCI"), Xxxxxxx,
Xxxxx & Co. ("Xxxxxxx Sachs") and Wachovia Capital Markets, LLC ("Wachovia")
(collectively, the "Underwriters") pursuant to an underwriting agreement, dated
as of April 1, 2004 (the "Underwriting Agreement"). BACM intends to sell certain
of the remaining Classes of Certificates (the "Non-Registered Certificates") to
Banc of America and BSCI, as initial purchasers thereof (together the "Initial
Purchasers"), pursuant to a certificate purchase agreement dated as of dated
April 1, 2004 (the "Certificate Purchase Agreement"), among BACM, Banc of
America and BSCI. The Registered Certificates are more fully described in the
prospectus dated April 1, 2004 (the "Basic Prospectus"), and the supplement to
the Basic Prospectus dated April 1, 2004 (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully described in that certain private placement memorandum dated April 1, 2004
(the "Memorandum"), as each may be amended or supplemented at any time
hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of April 1, 2004 (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. Agreementto 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 $774,550,956.32, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
April 14, 2004 in immediately available funds. The Purchaser shall be entitled
to all interest accrued on the Mortgage Loans on and after the Cut-off Date and
all principal payments received on the Mortgage Loans after the Cut-off Date
except for principal and interest payments due and payable on the Mortgage Loans
on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or, if so directed by the Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"), the Mortgage
File with respect to each of the Mortgage Loans; provided that the Purchaser
hereby directs the Seller to prepare and the Seller shall prepare or cause to be
prepared (or permit the Purchaser to prepare) with respect to the Mortgage
Loans, the assignments of Mortgage, assignments of Assignment of Leases and UCC
financing statements on Form UCC-2 or UCC-3, as applicable, from the Seller in
favor of the Trustee (in such capacity) or in blank. The Seller shall at its
expense, within 45 days after the Closing Date or, in the case of a Replacement
Mortgage Loan, after the related date of substitution, unless recording/filing
information is not available by such time for assignments solely due to
recorder's office delay, in which case such submission shall be made promptly
after such information does become available from the recorder's office, submit
or cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment referred to in the immediately preceding
sentence. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall in
each such case promptly prepare or cause the preparation of a substitute
therefor or cure or cause the curing of such defect, as the case may be, and
thereafter shall in each such case, at its own expense, submit the substitute or
corrected documents or cause such to be submitted for recording or filing, as
appropriate.
(d) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or to its designee all of the following items:
(i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of the Seller that relate to the Mortgage
Loans and originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans (except to the extent such items represent
attorney-client privileged communications and confidential credit analysis of
the client or are to be retained by a sub-servicer that will continue to act on
behalf of the Purchaser or its designee); and (ii) all Escrow Payments and
Reserve Funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans. Unless the Purchaser notifies the Seller in
writing to the contrary, the designated recipient of the items described in
clauses (i) and (ii) of the preceding sentence shall be the Master Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(f) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(e). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, the delivery
requirements of Section 2(e) shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File. If the Seller cannot or does not so deliver, or cause to
be delivered, as to any Mortgage Loan, the original of any of the documents
and/or instruments referred to in clauses (iv) and (v) of the definition of
"Mortgage File" in the Pooling and Servicing Agreement, because such document or
instrument has been delivered for recording or filing, as the case may be, the
delivery requirements of Section 2(e) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan.
(g) [Reserved].
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of United States of
America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the Seller's knowledge, threatened
against the Seller which if determined adversely to the Seller would
prohibit the Seller from entering into this Agreement, or in the Seller's
good faith and reasonable judgment, would be likely to materially and
adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and the terms of the Pooling and Servicing
Agreement; provided that if the Seller certifies in writing to the Purchaser (i)
that any such Material Breach or Material Document Defect, as the case may be,
does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan basis. The Seller shall have no obligation to monitor the Mortgage
Loans regarding the existence of a Material Breach or Material Document Defect,
but if the Seller discovers a Material Breach or Material Document Defect with
respect to a Mortgage Loan, it will notify the Purchaser. For purposes of
remediating a Material Breach or Material Document Defect with respect to any
Mortgage Loan, "Resolution Extension Period" shall mean the 90-day period
following the end of the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or 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 Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan in the manner
described above unless, in the case of a Material Breach or Material Document
Defect, both of the following conditions would be satisfied if the Seller were
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph: (i) the
debt service coverage ratio for any remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the greater of (a) the
debt service coverage ratio immediately prior to the repurchase, and (b) 1.25x
and (ii) the loan-to-value ratio for any remaining Crossed-Collateralized
Mortgage Loans or Mortgaged Properties is not greater than the lesser of (a) the
loan-to-value ratio immediately prior to the repurchase, and (b) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Crossed-Collateralized Mortgage Loan or Mortgaged Properties as to
which the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the 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.
The Seller's obligation to cure any Material Breach or Material Document
Defect or repurchase or substitute any affected Mortgage Loan or Mortgaged
Property pursuant to this Section 4(c) constitute the sole remedies available to
the Purchaser in connection with a breach of any of the Seller's representations
and warranties contained in Section 4(b) and it is acknowledged and agreed that
those representations and warranties are being made for risk allocation purposes
only.
It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to this Section 4(c) that the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto ), to the extent that such
ownership interest was transferred to the Purchaser hereunder.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with 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) [Reserved];
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers, and each
Rating Agency 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:
Xxxxx Xxxxxxx, telecopy number: (000) 000-0000, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, or to
such other addresses as may hereafter be furnished to the Purchaser by the
Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN
TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW, PURSUANT TO WHICH
THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK AS THE
GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN
NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. Waiver of Trial by Jury.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan
Number Number Originator Property Name
----------------------------------------------------------------------------------------------------
1 57797 Bank of America Sunterra Apartments
3 57799 Bank of America Overlook Apartments
21 57563 Bank of America Brookview Court Apartments
23 57995 Xxxx xx Xxxxxxx Xxxxxx Xxxxx Xxxxx
00 00000 Bank of America Springfield Plaza Shopping Center
29 00000 Xxxx xx Xxxxxxx Xxxx Xxxxxx Xxxxx
00.0 00000 Xxxx xx Xxxxxxx 000 Xxxxxxxxxx Xxxxxx
30.2 57748 Bank of America 00-00 XxXxxxx Xxxx
30.3 57748 Bank of America 0000 Xxx Xxxxxxx Xxxxxx
30.4 57748 Bank of America 000 Xxxxxxxxxx Xxxxxx
30 57748 Bank of America West Hartford Portfolio (Roll Up)
31.1 57720 Bank of America Colony Mill Marketplace
31.2 57720 Bank of America Center at Keene
31 57720 Bank of America Colony Mill Marketplace and Center at Keene (Roll Up)
32 57380 Bank of America Xxxxxxx City Commons
33 57765 Bank of America Xxxxxxx Xxxxxx Xxxxx
00 00000 Xxxx xx Xxxxxxx Timpany Plaza
41 57768 Bank of America Xxxxx & Madison Market Place
42 57607 Bank of America Alton Corners Shopping Center
43 57707 Bank of America Bellevue Place Shopping Center
44 57706 Bank of America Spring Mall Shopping Center
48 57742 Bank of America Woodford Square Shopping Center
51 57774 Bank of America Citrus Park Shops
52 57749 Bank of America Walgreens - Bluffton, IN
55 57698 Xxxx xx Xxxxxxx XXX Xxxxx
00 00000 Bank of America 000 Xxxx 00xx Xxxxxx
59 57580 Bank of America 0000 Xxxxxxxx
60 57718 Bank of America Paradise Valley Corporate Center
61 57526 Bank of America The Forbes Building
62 57469 Bank of America Xxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxx xx Xxxxxxx Lakeside III
66 57777 Bank of America Xxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx DeVry Institute
68 57767 Bank of America Galleria at Red Bank
69 57909 Bank of America 4040 North Central Expressway
70 57691 Bank of America Xxxxxxx Xxx Xxxxxxxx XX
00 00000 Bank of America River Park One
72 57573 Bank of America Cross Street Medical Building
73 55600 Bank of America Xxxxxx Xxxxxx Xxxxxxxx - Xxxxxxxxx, XX
74.1 00000 Xxxx xx Xxxxxxx Xxxxxxx Xxxxx
00.0 00000 Xxxx xx Xxxxxxx Xxxx & Country
74.3 57524 Bank of America The Plaza
74 57524 Bank of America Xxxxxxx/Xxxxxx Office Portfolio (Roll Up)
75 56659 Bank of America Atrium Memorial Professional Building
76 57421 Bank of America Xxxxx Xxxxx
00 00000 Xxxx of America Southport Business Park
79 00000 Xxxx xx Xxxxxxx XXX Xxxxxxxxx - Xxxxxxxxx Xxxxxxx
80 57678 Bank of America MHC Portfolio - Lake Fairways Country Club
81 57663 Bank of America MHC Portfolio - The Xxxxxxx at Countrywood
82 57662 Bank of America MHC Portfolio - The Lakes at Countrywood
84 57659 Bank of America MHC Portfolio - Sweetbriar
85 57687 Bank of America The Store Room
86 57551 Bank of America Best Florida Mini Storage
87 57689 Bank of America A-1 Paramount Self Storage
88 57740 Bank of America Storgard Self Storage and RV
90 57688 Bank of America X-0 Xx Xxxxx Self Storage
91 57717 Bank of America Access Self Storage
Sequence Mortgage
Number Street Address City State Zip Code Rate (%) AmortizationBasis
------------------------------------------------------------------------------------------------------------------------------------
1 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 4.840% ACT/360
3 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 5.131% ACT/360
21 0 Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 5.410% ACT/360
23 000 Xxxx Xxxxxxxx Xxxxxx Xxxx XX 00000 3.452% ACT/360
24 0000-0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 5.912% ACT/360
29 0000-0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 5.770% ACT/360
30.1 000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
30.2 00-00 XxXxxxx Xxxx Xxxx Xxxxxxxx XX 00000
30.3 0000 Xxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
30.4 000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
00 Xxxxxxx Xxxx Xxxxxxxx XX 00000 5.670% ACT/360
31.1 000 Xxxx Xxxxxx Xxxxx XX 00000
31.2 000 Xxxxxxx Xxxxxx Xxxxx XX 00000
31 Xxxxxxx Xxxxx XX 00000 6.070% ACT/360
32 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000 6.010% ACT/360
33 00000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 5.760% ACT/360
37 000 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 6.083% ACT/360
41 5410 & 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 5.410% ACT/360
42 000-000 Xxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 6.065% ACT/360
43 0000 Xxxxxxx 00 Xxxxx Xxxxxxxx XX 00000 5.130% 30/360
44 0000 Xxxxxx Xxxx Xxxxx Xxxxxxxxxxx XX 00000 4.660% 30/360
48 000 Xxxxx Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 5.300% ACT/360
51 0000-0000 Xxxx Xxxxxxx Xxxxx XX 00000 5.960% ACT/360
52 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 6.000% ACT/360
00 Xxx-Xxx XXX Xxxxx Xxxxxxxxxx XX 00000 5.343% ACT/360
57 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 5.684% ACT/360
59 0000 Xxxxxxxx Xxx Xxxx XX 00000 5.830% ACT/360
60 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 5.790% ACT/360
61 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000 5.883% ACT/360
62 00000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 5.470% ACT/360
65 00000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 5.730% ACT/360
66 1450, 1465 & 0000 Xxxx Xxxxxx and 0000 Xxxx Xxxxx Xxxxxxx XX 00000 5.750% ACT/360
67 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 5.280% ACT/360
68 0-00 Xxxxxx Xxx. Xxx Xxxx XX 00000 5.360% ACT/360
69 0000 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 5.773% ACT/360
70 0000 Xxxxx 000xx Xxx Xxxxxxx Xxx XX 00000 5.446% ACT/360
71 00000 Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 5.770% ACT/360
72 00 Xxxxx Xxxxxx Xxxxxxx XX 00000 5.670% ACT/360
73 0000 Xxxxx Xxxxxxx 000 Xxxxxxxxx XX 00000 6.090% ACT/360
74.1 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74.2 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74.3 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
74 7745, 7751 and 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 5.390% ACT/360
75 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 6.000% ACT/360
76 00-00 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.700% ACT/360
78 2928, 2934 and 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.875% ACT/360
79 000 Xxxx Xxxxx Xxxx XX 00000 6.327% ACT/360
80 00000 Xxxxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000 6.327% ACT/360
81 000 Xxxx Xxx Xxxxx Xxxx Xxxxx Xxxx XX 00000 5.715% ACT/360
82 000 Xxxx Xxx Xxxxx Xxxx Xxxxx Xxxx XX 00000 5.715% ACT/360
00 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxx 000 Xxxxx XX 00000 6.327% ACT/360
85 000 XX Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.980% ACT/360
86 0000 XX 00xx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 6.010% ACT/360
87 00000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 5.777% ACT/360
88 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 5.390% ACT/360
90 000 Xxxx Xxxxxxx Xxxx Xx Xxxxx XX 00000 5.930% ACT/360
91 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 6.050% ACT/360
Sequence Original Cut-off Stated Maturity Stated Monthly Administrative
Number Balance Balance (months) Maturity Date Due Date Payment Fee Rate
------------------------------------------------------------------------------------------------------------------------------------
1 $20,000,000 $19,977,938 59 3/1/2009 1st $105,417 0.122%
3 12,400,000 12,400,000 83 3/1/2011 1st 67,562 0.122%
21 1,675,000 1,667,998 116 12/1/2013 1st 9,416 0.122%
23 42,000,000 42,000,000 60 4/1/2009 1st 187,475 0.062%
24 26,000,000 25,924,931 117 1/1/2014 1st 154,415 0.122%
29 16,000,000 15,884,422 115 11/1/2013 1st 100,850 0.122%
30.1 5,538,462 5,538,462
30.2 2,846,154 2,846,154
30.3 2,846,154 2,846,154
30.4 1,769,231 1,769,231
30 13,000,000 13,000,000 57 1/1/2009 1st 78,877 0.122%
31.1 7,077,778 7,052,166
31.2 5,522,222 5,502,240
31 12,600,000 12,554,406 116 12/1/2013 1st 76,111 0.122%
32 12,000,000 11,976,081 118 2/1/2014 1st 72,023 0.122%
33 12,000,000 11,964,232 117 1/1/2014 1st 70,105 0.122%
37 8,900,000 8,875,216 117 1/1/2014 1st 53,836 0.122%
41 7,000,000 6,993,259 119 3/1/2014 1st 39,351 0.122%
42 6,200,000 6,177,540 116 12/1/2013 1st 37,432 0.122%
43 5,985,000 5,985,000 116 12/1/2013 1st 0 0.122%
44 5,765,000 5,765,000 80 12/1/2010 1st 0 0.122%
48 3,920,000 3,916,123 119 3/1/2014 1st 21,768 0.122%
51 3,000,000 2,993,963 118 2/1/2014 1st 17,909 0.122%
52 2,800,000 2,797,679 119 3/1/2014 1st 16,787 0.122%
55 116,000,000 115,704,055 81 1/1/2011 1st 624,479 0.042%
57 36,500,000 36,467,173 119 3/1/2014 1st 211,472 0.122%
59 28,000,000 27,917,752 117 1/1/2014 1st 164,826 0.122%
60 24,750,000 24,654,705 80 12/1/2010 1st 145,064 0.122%
61 21,000,000 21,000,000 114 10/1/2013 1st 127,624 0.122%
62 18,000,000 18,000,000 53 9/1/2008 1st 0 0.122%
65 15,120,000 15,106,560 119 3/1/2014 1st 88,044 0.122%
66 12,900,000 12,872,986 118 2/1/2014 1st 75,281 0.122%
67 11,450,000 11,362,451 137 9/1/2015 1st 63,440 0.122%
68 10,500,000 10,476,341 118 2/1/2014 1st 58,699 0.072%
69 10,000,000 9,979,150 118 2/1/2014 1st 58,503 0.122%
70 9,900,000 9,900,000 115 11/1/2013 1st 55,876 0.122%
71 8,500,000 8,467,129 116 12/1/2013 1st 49,712 0.122%
72 8,000,000 7,975,704 117 1/1/2014 1st 46,280 0.122%
73 6,800,000 6,781,092 144 4/1/2016 1st 41,164 0.122%
74.1 3,672,924 3,653,325
74.2 1,047,308 1,041,720
74.3 779,768 775,607
74 5,500,000 5,470,652 55 11/1/2008 1st 30,850 0.122%
75 5,250,000 5,220,907 114 10/1/2013 1st 31,476 0.122%
76 3,840,000 3,820,795 115 11/1/2013 1st 22,287 0.122%
78 7,350,000 7,328,613 117 1/1/2014 1st 43,478 0.122%
79 30,953,930 30,953,930 139 11/1/2015 1st 192,142 0.122%
80 30,460,183 30,460,183 139 11/1/2015 1st 189,077 0.122%
81 18,292,718 18,292,718 79 11/1/2010 1st 106,345 0.122%
82 9,722,325 9,722,325 79 11/1/2010 1st 56,521 0.122%
84 3,040,000 3,040,000 139 11/1/2015 1st 18,870 0.122%
85 7,250,000 7,215,840 115 11/1/2013 1st 43,374 0.122%
86 5,512,000 5,491,785 116 12/1/2013 1st 33,083 0.122%
87 4,840,000 4,812,445 116 12/1/2013 1st 30,526 0.122%
88 4,500,000 4,479,200 57 1/1/2009 1st 27,339 0.082%
90 3,825,000 3,803,788 116 12/1/2013 1st 24,481 0.122%
91 3,100,000 3,091,307 117 1/1/2014 1st 18,686 0.122%
Primary Master Original
Sequence Servicing Servicing Amortization Grace
Number Fee Rate Fee Rate Ownership Interest Crossed (months) ARD Loan Period
------------------------------------------------------------------------------------------------------------
1 0.100% 0.120% Fee Simple No 360 No 10
3 0.100% 0.120% Fee Simple No 360 No 10
21 0.100% 0.120% Fee Simple No 360 No 10
23 0.040% 0.060% Leasehold No 360 No 10
24 0.100% 0.120% Fee Simple No 360 No 10
29 0.100% 0.120% Fee Simple No 300 No 10
30.1 Fee Simple No
30.2 Fee Simple No
30.3 Fee Simple No
30.4 Fee Simple No
30 0.100% 0.120% Fee Simple No 320 No 10
31.1 Fee Simple No
31.2 Fee Simple No
31 0.100% 0.120% Fee Simple No 360 No 10
32 0.100% 0.120% Fee Simple No 360 No 10
33 0.100% 0.120% Fee Simple No 360 No 10
37 0.100% 0.120% Fee Simple No 360 No 10
41 0.100% 0.120% Fee Simple No 360 No 10
42 0.100% 0.120% Fee Simple No 360 No 10
43 0.100% 0.120% Fee Simple No 0 No 10
44 0.100% 0.120% Fee Simple No 0 No 10
48 0.100% 0.120% Fee Simple No 360 No 10
51 0.100% 0.120% Fee Simple No 360 No 10
52 0.100% 0.120% Fee Simple No 360 No 10
55 0.020% 0.040% Fee Simple No 360 No 0
57 0.100% 0.120% Fee Simple No 360 No 5
59 0.100% 0.120% Fee Simple No 360 No 10
60 0.100% 0.120% Fee Simple No 360 No 10
61 0.100% 0.120% Fee Simple No 336 No 10
62 0.100% 0.120% Fee Simple No 0 No 10
65 0.100% 0.120% Fee Simple No 360 No 10
66 0.100% 0.120% Fee Simple No 360 No 10
67 0.100% 0.120% Fee Simple No 360 No 10
68 0.050% 0.070% Leasehold No 360 No 10
69 0.100% 0.120% Fee Simple No 360 No 10
70 0.100% 0.120% Fee Simple No 360 No 10
71 0.100% 0.120% Fee Simple No 360 No 10
72 0.100% 0.120% Fee Simple No 360 No 10
73 0.100% 0.120% Fee Simple No 360 No 10
74.1 Fee Simple No
74.2 Fee Simple No
74.3 Fee Simple No
74 0.100% 0.120% Fee Simple No 360 No 10
75 0.100% 0.120% Fee Simple No 360 No 10
76 0.100% 0.120% Fee Simple No 360 No 10
78 0.100% 0.120% Fee Simple No 360 No 10
79 0.100% 0.120% Fee Simple No 360 No 10
80 0.100% 0.120% Fee Simple No 360 No 10
81 0.100% 0.120% Fee Simple Xxx(XXXX 00-0-X) 000 Xx 00
00 0.100% 0.120% Fee Simple Xxx(XXXX 00-0-X) 000 Xx 00
00 0.100% 0.120% Fee Simple No 360 No 10
85 0.100% 0.120% Fee Simple No 360 No 10
86 0.100% 0.120% Fee Simple No 360 No 10
87 0.100% 0.120% Fee Simple No 300 No 10
88 0.060% 0.080% Fee Simple No 300 No 10
90 0.100% 0.120% Fee Simple No 300 No 10
91 0.100% 0.120% Fee Simple No 360 No 10
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the
representations and warranties attached hereto, the Seller hereby represents and
warrants that, as of the date specified below or, if no such date is specified,
as of the Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in April 2004.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances.
Subject to the completion of all missing information (including, without
limitation, the names of assignees and endorsees and missing recording
information) in all instruments of transfer or assignment and endorsements, and
the completion of all recording and filing contemplated hereby and by the
Pooling and Servicing Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in April 2004, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
April 2004.
4. Lien; Valid Assignment. Based on the related lender's
title insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of
Leases, if any, related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in Paragraph 13 below, enforceable assignment of or first priority lien on
and security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case
of each Mortgage Loan, except by a written instrument which has been delivered
to the Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of
each Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a
Mortgage Loan is covered by an American Land Title Association (or an equivalent
form of) lender's title insurance policy (the "Title Policy") (or, if such
policy is yet to be issued, by a pro forma policy or a "marked up" commitment)
in the original principal amount of such Mortgage Loan after all advances of
principal, insuring that the related Mortgage is a valid first priority lien on
such Mortgaged Property, subject only to the exceptions stated therein. Such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and,
to the Seller's knowledge, no material claims have been made thereunder and no
claims have been paid thereunder. To the Seller's knowledge, no holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the Purchaser and
recording of the related Assignment of Mortgage in favor of Purchaser in the
applicable real estate records), such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), (a) access to a public road, and (b) that the area shown on
the survey, if any, reviewed or prepared in connection with the origination of
the related Mortgage Loan is the same as the property legally described in the
related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have
been fully disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held in escrow
or reserve accounts pending the satisfaction of certain conditions relating to
leasing, repairs or other matters with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are payable to such trustee by the
Seller, the Depositor or any transferee thereof except in connection with a
trustee's sale after default by the related Borrower or in connection with any
full or partial release of the related Mortgaged Property or related security
for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and
other agreement executed by or on behalf of the related Borrower with respect to
each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by (a) bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and (b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset or rescission available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements that would deny the mortgagee
the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants,
having a net worth of at least $50,000,000 or an investment grade credit rating
and obligated to maintain the insurance described in this paragraph, are allowed
to self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least 12 months. Notwithstanding the foregoing, with respect to
Loan Xx. 00000 (XXX Xxxxx), the Mortgaged Property has business interruption
insurance or rental loss insurance providing for coverage greater than or equal
to gross rentals for at least 18 months. If any portion of the improvements on a
Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the 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 (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without thirty (30) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. For each Mortgaged Property located in a Zone 3 or Zone
4 seismic zone, either: (i) a seismic report which indicated a PML of less than
20% was prepared, based on a 450 or 475-year look back with a 10% probability of
exceedance in a 50-year period, at origination for such Mortgaged Property or
(ii) the improvements for the Mortgaged Property are insured against earthquake
damage. If the Mortgaged Property is located in Florida or within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina or
South Carolina such Mortgaged Property is insured by windstorm insurance in an
amount at least equal to the lesser of (i) the outstanding principal balance of
such Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged Property.
With respect to each Mortgage Loan that has a principal balance as of
origination date that is greater than or equal to $20,000,000, the related all
risk insurance policy and business interruption policy do not specifically
exclude acts of terrorism from coverage. With respect to each other Mortgage
Loan, the related all risk insurance policy and business interruption policy did
not as of the date of origination of the Mortgage Loan, and, to the Seller's
knowledge, does not as of the date hereof, specifically exclude acts of
terrorism from coverage. With respect to each of the Mortgage Loans, the related
Mortgage Loan documents do not expressly waive or prohibit the mortgagee from
requiring coverage for acts of terrorism or damages related thereto, except to
the extent that any right to require such coverage may be limited by
commercially reasonable availability. With respect to each Mortgage Loan, the
related Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below). At origination, the Seller received evidence that each Mortgaged
Property was insured by a commercial general liability policy in an amount not
less than $1,000,000 per occurrence. Under each insurance policy either (A) the
Seller is named as mortgagee under a standard mortgagee clause or (B) the Seller
is named as an additional insured or loss payee, and in each case is entitled to
receive thirty (30) days' prior notice as holder of the Mortgage of termination
or cancellation.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that are not otherwise covered by an
escrow of funds sufficient to pay such charge. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered delinquent until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no
Borrower under a Mortgage Loan is a debtor in any state or federal bankruptcy,
insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based
upon a letter from governmental authorities, a legal opinion, a zoning
consultant's report, an endorsement to the related Title Policy, or a
representation of the related Borrower at the time of origination of the subject
Mortgage Loan, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured
by the interest of a Borrower as a lessee under a ground lease of all or a
material portion of a Mortgaged Property (together with any and all written
amendments and modifications thereof and any and all estoppels from or other
agreements with the ground lessor, a "Ground Lease"), but not by the related fee
interest in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then: (a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of material changes reflected in written instruments which are a
part of the related Mortgage File; (b) Based on the related Title Policy (or, if
not yet issued, a pro forma title policy or a "marked up" commitment), the
related lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Permitted Encumbrances; (c) The Borrower's
interest in such Ground Lease is assignable to, and is thereafter further
assignable by, the Purchaser upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required, it either has been obtained
or cannot be unreasonably withheld); provided that such Ground Lease has not
been terminated and all amounts owed thereunder have been paid; (d) The Seller
has not received, as of the Closing Date, actual notice that such Ground Lease
is not in full force and effect or that any material default has occurred under
such Ground Lease; (e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease; (f) The mortgagee under such Mortgage Loan is
permitted a reasonable opportunity (including, where necessary, sufficient time
to gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the receipt of
notice of any such default, before the lessor thereunder may terminate such
Ground Lease; (g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking possession of the
Borrower's leasehold interest, if exercised, would cause the term of such Ground
Lease to extend not less than twenty (20) years beyond the Stated Maturity Date
of such Mortgage Loan; (h) Such Ground Lease requires the lessor to enter into a
new lease with a mortgagee upon termination of such Ground Lease as a result of
any default or as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Borrower unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee under such Ground Lease
following notice thereof from the lessor; (i) Under the terms of such Ground
Lease and the related Mortgage, taken together, any related casualty insurance
proceeds with respect to the leasehold interest will be applied either (i) to
the repair or restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal balance of
the Mortgage Loan together with any accrued interest thereon; (j) Such Ground
Lease does not impose any restrictions on subletting which would be viewed as
commercially unreasonable by a prudent commercial mortgage lender in the lending
area where the Mortgaged Property is located at the time of the origination of
such Mortgage Loan; and (k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage Loan, and any
such action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds
or induced, solicited or knowingly received any advance of funds from a party
other than the owner of the related Mortgaged Property (other than amounts paid
by the tenant as specifically provided under related lease), for the payment of
any amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Borrower, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related Monthly Payment..
22. Legal Proceedings. To the Seller's knowledge, there are
no pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits
the related Mortgaged Property to be encumbered by any mortgage lien junior to
or of equal priority with the lien of the related Mortgage without the prior
written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. To the Seller's knowledge, none
of the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of
origination, each Mortgage Loan complied with, or was exempt from, all
applicable usury laws.
26. Licenses and Permits. As of the date of origination of
each Mortgage Loan and based on any of: (a) a letter from governmental
authorities, (b) a legal opinion, (c) an endorsement to the related Title
Policy, (d) a representation of the related borrower at the time of origination
of such Mortgage Loan, (e) a zoning report from a zoning consultant, or (f)
other due diligence that the originator of the Mortgage Loan customarily
performs in the origination of comparable mortgage loans, the related Borrower
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated or such material licenses, permits and franchises have
otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (a)
payment in full of all amounts due under the related Mortgage Loan or (b)
delivery of U.S. Treasury securities in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements or (b) the payment of a release price and, if required
by the related Mortgage Loan documents, prepayment consideration in connection
therewith; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan. None
of the release provisions in any Mortgage Loan if exercised would render such
Mortgage Loan an "unqualified mortgage" within the meaning of Section 860G(a)(3)
of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision
for any defeasance of mortgage collateral permits defeasance (a) no earlier than
two years following the Closing Date and (b) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Borrower is responsible for the payment of all reasonable costs and expenses
incurred by the related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. In connection with the origination of each
Mortgage Loan, the related originator inspected, or caused the inspection of,
the related Mortgaged Property.
33. No Material Default. There exists no material default,
breach, violation or event of acceleration under the Mortgage Note or Mortgage
for any Mortgage Loan, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule II or by the
exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions set forth in the
related Mortgage, the Mortgage for each Mortgage Loan contains a "due-on-sale"
clause that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage
Loan with a Cut-off Date Principal Balance of $25,000,000 or more, was, as of
the origination of the Mortgage Loan, a Single Purpose Entity. For this purpose,
a "Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or
more complete separate tax lots or is subject to an endorsement under the
related Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor impaired
property policy, then the Seller has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports in the Seller's
possession related to such Mortgaged Property to the extent that the failure to
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
39. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan,
the related Mortgage requires the related Borrower, in some cases at the request
of the lender, to provide the holder of such Mortgage Loan at least annually
with operating statements and, if there is more than one tenant, rent rolls for
the related Mortgaged Property and/or financial statements of the related
Borrower.
41. Servicing Rights. Except as otherwise contemplated in
this Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain
standard provisions providing for recourse against the related Borrower, a
principal of such Borrower or an entity controlled by a principal of such
Borrower for damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest
in any material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the
related Borrower in the Mortgaged Property securing each Mortgage Loan includes
a fee simple and/or leasehold estate or interest in real property and the
improvements thereon.
45. Borrower Organization. Each Borrower that is an entity
is organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage
Loans by the Seller or a sub-servicer retained by the Seller is legal, proper
and prudent in all material respects.
47. Escrows. As of the date of origination, all escrow
deposits and payments relating to a Mortgage Loan were under the control of the
originator and all amounts required to be deposited by each Borrower were
deposited.
48. UCC Financing Statements. UCC Financing Statements have
been filed and/or recoded (or, if not filed and/or recorded, have been submitted
in proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed. Notwithstanding any of the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of UCC Financing Statements are required in order to effect such
perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing.
As of the date of its origination and to the Seller's knowledge as of the
Cut-off Date, each Mortgage Loan complied in all material respects with, or was
exempt from, all requirements of federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
Schedule IIA
REPRESENTATION 4
Lien; Valid Assignment.
------------------------------------------------------------ ---------------------------------------------------------
PPG Place (57698) Schedule B to the title policy identifies certain
encroachments, however the title policy insures the
related borrower against losses resulting from "any
final court order or judgment requiring the removal
from any land adjoining the land of any encroachment
excepted in Schedule B."
------------------------------------------------------------ ---------------------------------------------------------
MHC Portfolio - Lake Fairways Country Club (57678) The assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of
MHC Portfolio - Sweetbriar (57659) Mortgage Electronic Registration Systems, Inc. ("MERS")
or its designee, no assignment of Mortgage and/or
MHC Portfolio - The Xxxxxxx at Countrywood (57663) assignment of Assignment of Leases in favor of the
Trustee will be required to be prepared or delivered
MHC Portfolio - Waterford Estates (57660) and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner
MHC Portfolio - The Lakes at Countrywood (57662) 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.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 5
Assignment of Leases and Rents.
-------------------------------
------------------------------------------------------------ ---------------------------------------------------------
MHC Portfolio - Lake Fairways Country Club (57678) The assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of
MHC Portfolio - Sweetbriar (57659) Mortgage Electronic Registration Systems, Inc. ("MERS")
or its designee, no assignment of Mortgage and/or
MHC Portfolio - The Xxxxxxx at Countrywood (57663) assignment of Assignment of Leases in favor of the
Trustee will be required to be prepared or delivered
MHC Portfolio - Waterford Estates (57660) and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner
MHC Portfolio - The Lakes at Countrywood (57662) 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.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 12
Environmental Conditions.
------------------------------------------------------------ ---------------------------------------------------------
Colony Mill Marketplace and Center at Xxxxx (57720) The loan documents require that within one hundred
thirty-five (135) days of the closing of the Mortgage
Loan, the related borrower shall provide the mortgagee
with evidence that a remedial action plan, if any, and
a groundwater management permit have been approved and
issued by the New Hampshire Department of Environmental
Services (the "NHDES") NHDES in connection with the
Mortgaged Property. Under the loan documents, if the
related borrower fails to provide such evidence,
certain funds shall remain on deposit in the
Environmental Requirement Reserve Account (defined in
the Loan Agreement) as additional collateral for the
remaining term of the Mortgage Loan. Under the loan
documents, if the estimated costs of the groundwater
management permit exceed $2,000 per year, the related
borrower shall promptly provide the additional amounts
in order to comply with the groundwater management
permit. Under the loan documents, the related borrower
principal agrees (x) to be jointly and severally liable
with the related borrower for all of the additional
costs, if any, and (y) to comply with the remedial
action plan.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 14
Insurance.
------------------------------------------------------------ ---------------------------------------------------------
MHC Portfolio - Lake Fairways Country Club (57678) The insurance provisions explicitly exclude terrorism
coverage. The related borrower is to fund a terrorism
MHC Portfolio - Sweetbriar (57659) reserve account with an amount equal to three (3)
months of loan payments, which requirement is triggered
MHC Portfolio - The Xxxxxxx at Countrywood (57663) upon the occurrence of a terrorist act in which the
property is involved.
MHC Portfolio - Waterford Estates (57660)
MHC Portfolio - The Lakes at Countrywood (57662)
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 17
Local Law Compliance.
------------------------------------------------------------ ---------------------------------------------------------
0000 Xxxxxxxx (57580) The post closing agreement provides that the related
borrower shall cure certain fire code and local
ordinance violations within 90 days of December 4,
2003. There is no evidence that this obligation has
been fulfilled as of yet.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 18
Leasehold Estate Only.
------------------------------------------------------------ ---------------------------------------------------------
Prince Kuhio (57995) The related Ground Lease does not require the lessor to
enter into a new lease with a mortgagee upon
termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground
Lease in a bankruptcy proceeding involving the related
Borrower, however the Consent Agreement provides that
neither the bankruptcy nor the insolvency of Tenant
shall operate nor permit Landlord to terminate the
Ground Lease as long as all rent and other charges
payable to Landlord continue to be paid.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 26
Licenses and Permits.
------------------------------------------------------------ ---------------------------------------------------------
The Forbes Building (57526) The related borrower is obligated to amend its
certificate of occupancy to reflect the current use of
the improvements. No evidence was provided for review
that such obligation has been fulfilled.
------------------------------------------------------------ ---------------------------------------------------------
West Hartford Portfolio (57748) Certificates of occupancy were not provided for review
for each of the tenant spaces.
Restaurant permits and permits necessary for the
operation of the Mortgaged Property were not provided,
however the related borrower is obligated to deliver
such permits to lender as a post-closing condition.
------------------------------------------------------------ ---------------------------------------------------------
REPRESENTATION 48
UCC Financing Statements.
-------------------------
------------------------------------------------------------ ---------------------------------------------------------
MHC Portfolio - Lake Fairways Country Club (57678) With respect to the Mortgage Loan, the related security
agreement and/or UCC Financing Statement has been
MHC Portfolio - Sweetbriar (57659) recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing
MHC Portfolio - The Xxxxxxx at Countrywood (57663) Statement in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall
MHC Portfolio - Waterford Estates (57660) take all actions as are necessary to cause the Trust to
be shown as the owner of the related Mortgage Loan on
MHC Portfolio - The Lakes at Countrywood (57662) the records of MERS for purposes of the system of
recording transfers of beneficial ownership of
mortgages maintained by MERS.
------------------------------------------------------------ ---------------------------------------------------------
SCHEDULE IIA
REP EXCEPTIONS FOR BRIDGER MORTGAGE LOANS
Exception 14 - Insurance:
With respect to the Walgreens-Loveland Mortgage Loan, the tenant (Walgreen
Co.) self-insures the related Mortgaged Property except that there is no express
coverage for business rent loss because Walgreens is required to continue paying
rent in the event of a casualty. In addition, Walgreens' lease with the related
Borrower requires it to maintain (i) special form coverage insurance covering
not less than 100% of replacement costs of the buildings and other improvements
on the Mortgaged Property, less foundations, and (ii) commercial liability
coverage for death or bodily injury in a amount not less than $2,000,000.00 per
occurrence, but liability for property damage must be covered only in an amount
not less than $200,000.00 per occurrence.
With respect to each of the Bridger Mortgage Loans (other than the
Walgreens-Loveland Mortgage Loan), the holder of the related Mortgage is
entitled to receive 30 days' prior notice of a termination or cancellation of
each insurance policy but only 10 days' prior notice if the termination or
cancellation is due to non-payment. With respect to the Walgreens-Loveland
Mortgage Loan, the tenant (Walgreen Co.) self-insures the related Mortgaged
Property.
Exception 16 - Borrower Bankruptcy:
With respect to the Marina Bay Apartments Mortgage Loan, the related
Borrower filed a voluntary Chapter 11 bankruptcy proceeding on or about December
11, 2001. The Seller is advised that the Borrower commenced the bankruptcy
proceeding as a result of certain defaults under one or more mortgage loans that
were secured by multiple properties, including (by cross-collateralization) the
related Mortgaged Property. The Borrower has explained that it believes the
defaults were in part occasioned by the Borrower losing control of the various
properties as a result of a dispute with the Borrower's former partner. The
bankruptcy court confirmed the Borrower's plan of reorganization on or about
June 4, 2003. The terms of the plan of reorganization included the approval of
the funding of the related Mortgage Loan, the proceeds of which the Borrower
used to satisfy any claims that may have been secured by a mortgage on the
related Mortgaged Property. The Borrower's Chapter 11 proceeding remains open
but the Borrower has informed the Seller that the Borrower's counsel very soon
will be filing a motion to dismiss the proceeding and to close the case.
Exception 41 - Servicing Rights:
Servicing rights have been granted as follows:
Loan Servicer
------------------------------------- -------------------
Somerville NJ Office Portfolio Collateral Mortgage
(Franklin Bldg.)
Somerville NJ Office Portfolio Collateral Mortgage
(Xxxxx Bldg.)
Holiday Ranch MHC-Happy Landings MHC Collateral Mortgage
Golf View Estates Apartments Collateral Mortgage
Xxxxxx Hills Office Building Collateral Mortgage
Hampton Inn - Southwind II Financial Federal
Xxxxxx Self Storage - Fayetteville Laureate Capital
Manor Homes of Fox Crest Midland
Marina Bay Apartments Midland
Orchard on the Green Apartments Midland
Walgreens - Loveland Midland
Xxxxxxx Self Storage Midland
Allsafe Freeway Storage Midland
Leave-it/Lock-it Self Storage Midland
The following Mortgage Loans are the Bridger Mortgage Loans:
Manor Homes of Xxx Xxxxx
Xxxxxx Xxx Xxxxxxxxxx
Xxxxxxxxxx XX Office Portfolio (Franklin Bldg.)
Somerville NJ Office Portfolio (Xxxxx Bldg.)
Holiday Ranch MHC-Happy Landings MHC
Hampton Inn - Southwind II
Golf View Estates Apartments
Orchard on the Green Apartments
Walgreens--Loveland
Xxxxxxx Self Storage
Xxxxxx Hills Office Building
Allsafe Freeway Storage
Leave it/Lock it Self Storage
Xxxxxx Self Storage--Fayetteville
