EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of December 16, 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") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of the
Mortgage Loans to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. and/or Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2004 (the "Pooling and Servicing Agreement"), among
BACM, as depositor, Bank of America, as master servicer (the "Master Servicer"),
Midland Loan Services, Inc., as special servicer (the "Special Servicer") and La
Salle Bank National Association, as trustee (in such capacity, the "Trustee")
and REMIC administrator, and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms used but not otherwise defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") and Xxxxxxx,
Xxxxx & Co. ("Xxxxxxx Sachs" and collectively with BAS and Bear Xxxxxxx, the
"Underwriters") pursuant to an underwriting agreement, dated as of December 16,
2004 (the "Underwriting Agreement"). BACM intends to sell certain of the
remaining Classes of Certificates (the "Non-Registered Certificates") through
BAS, as placement agent thereof (the "Placement Agent"), pursuant to a private
placement agency agreement dated as of December 16, 2004 (the "Placement
Agreement"), between BAS and BACM. The Registered Certificates are more fully
described in the prospectus dated December 16, 2004 (the "Basic Prospectus"),
and the supplement to the Basic Prospectus dated December 16, 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 the private placement
memorandum dated December 16, 2004 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify the Underwriters and certain related
parties with respect to certain disclosure regarding the Mortgage Loans and
contained in the Prospectus and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated as of December 16, 2004 (the "Indemnification Agreement"),
among the Seller, the Purchaser and the Underwriters.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans on or after the Cut-off
Date (including the Interest Deposit Amount) and which amount shall be payable
on or about December 22, 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 (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Beach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgage Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
December 23, 2004, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) [Reserved].
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young, LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Placement 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 and the Underwriters 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 and the
Underwriters, dated the Closing Date and addressed to the Purchaser, the
Underwriters, the Trustee 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 Placement
Agent 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 Xxxxxx, Vice President, with a copy to Xxxx X. Xxxxxxx, Esq. at the same
address, telecopy number: (000) 000-0000, or such other address as may hereafter
be furnished to the Seller in writing by the Purchaser; and if to the Seller,
addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, telecopy number:
(000) 000-0000, or to such other addresses as may hereafter be furnished to the
Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in this Agreement and
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/
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By:/s/
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan Loan
Number Number Seller Property Name Street Address
-----------------------------------------------------------------------------------------------------------------------------------
1 58563 BOFA King's Crossing 0000 Xxxxx Xxxxxx Xxx
2 58587 BOFA Barrington at Park Place 0000 Xxxxx Xxxx
3 58583 BOFA Legacy at Museum Park 000 Xxxx Xxx Xxxxxx Xxxxxx
4 58529 BOFA Stonebridge Apartments 0000 Xxxxxxxxxxx Xxxxx
5 58564 BOFA Park Laureate Apartments 0000 Xxxxx Xxxxx Xxxxx
6 58562 BOFA Wildwood Apartments 0000 Xxxx Xxxx
7 58530 BOFA Colonial Pointe Apartments 0000 Xxxx Xxxxxx
8 58353 BOFA Xxxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxx
9 10798 BOFA Xxxxxxx Xxxx Xxxxxxxxxx 0000 00xx Xxxxxx Xxxx
10 9106 BOFA Parkland Apartments 0000 Xxxxxxxxx 00xx Xxxxxx
11 11693 BOFA Gateway Apartments 0000 Xxxxxxxxx Xxxxxx Xxxxxx
12 11393 BOFA Xxx Xxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxx Xxxx
13 10441 BOFA Xxxx Xxxxxx Xxxxxxxxxx 0000-0000 Xxxx Xxxx Xxxxxx
14 58318 XXXX Xxxxxxxxxxx Xxxx 000 Xxxxxx Xxxx
00 00000 BOFA Simon - Upper Valley Mall 0000 Xxxxx Xxxxxx Xxxx
16.1 58112 BOFA Xxxxxxxxx Xxxxxxx X 00000-00000 Xxxxx Xxxxx Xxxx
16.2 58112 BOFA Xxxxxxxxx Xxxxxxx XX 00000-00000 Xxxxx Xxxxx Xxxx
16.3 58112 BOFA Cupertino Village III 00000 Xxxxx Xxxxx Xxxx
16 58112 BOFA Cupertino Village I, II & III (Roll Xx) Xxxxxxx
00 00000 XXXX Xxxx 'Bout Arden 0000 Xxxxx Xxx
18 58414 BOFA Wal-Mart Supercenter - Douglasville 0000 Xxxxxxxxx Xxxxxxx
19 9278 BOFA Gateway Shopping Center 4201-4251 Xxxxxxxxx Xxxxxxxxx
00 00000 XXXX Wal-Mart Supercenter - Austell 1133 Xxxx-Xxxx Xxxxxxxxx
00 00000 XXXX Xxxxxxxxxx Xxxxxxxx Xxxxxx 00000-00000 Xxxxxx Xxxxxxxxx
22 58528 XXXX Xxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxxxx
23 58477 BOFA Xxxxxxx Xxxxx 000 Xxxxx Xxxxx 35
24 58160 BOFA Pacific Center-Gardena 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
25 58273 XXXX Xxxxx Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxxx
00 00000 BOFA Sam's Club - Douglasville 0000 Xxxxxxxxx Xxxxxxx
27 58543 BOFA Cypress Lake Shopping Center 0000 Xxxxxxx Xxxx Xxxxx
28 58545 BOFA The Shoppes at Golden Acres 0000 Xxxxxx Xxxx
29 58307 BOFA Rufe Snow Village Shopping Center 6238-6248 Rufe Snow Drive
30 58524 BOFA Xxxx Plaza Shopping Center 4101-4115 Xxxxxxx Xxxxxxxxx
00 00000 XXXX Sav-on Pasadena 000 Xxxxx Xxxxxx Xxxxxxx
32 58390 BOFA Park Center Shopping 0000 Xxxxxxxx Xxxxxxxxx
33 58088 XXXX Xxxxxxxx Xxxxxx Xxxxxx 000 Xxxxxxxx Xxxx Xxxxx
00 00000 BOFA Rolling Xxxxxxx Retail 0000 Xxxx Xxxxxxxxx Xxxx
35 58487 BOFA Sav-on Xxxxx Xx Xxxxxxx 00000 Xxxxxxxxxx Xxxxxxxxx
36 58546 BOFA Southwood Village Shopping Center 0000 Xxxxx Xxxxx Xxxx
37 58489 BOFA Sav-on Riverside 000 Xxxxxxxxxx Xxxxxxxxx
00 0000 XXXX Xxxxxxxxx - Xxxxxxxx Xxxx 0000 00xx Xxxxxx Xxxxx
39 58527 XXXX XxXxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxxxx
40 58490 BOFA Santa Fe Springs Shopping Center 11400-11424 Xxxxxxxxxx Xxxxxxxxx
00 00000 XXXX Xxxxxxxxxxx Plaza 0000 Xxxxx Xxxxxxxxxxx Xxxx
42 58499 BOFA Hillside Sedona 000 Xxxxxxx 000
43 10830 XXXX Xxxxxxx Xxxx Xxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxx Xxxxxx
00 00000 XXXX Xxxxxxx Square 0000-0000 Xxxxxxxxxx Xxxxxx
45 10164 BOFA Shops at Prairie Crossing 000 - 000 Xxxxxxx Xxxx
46 9822 XXXX Xxxxxxxxxx Xxxxx 0000-0000 Xxxxxxxxx Xxxxxxx
47 58484 BOFA Post Oak Central 1980, 1990 and 0000 Xxxx Xxx Xxxxxxxxx
48 58440 BOFA Monument IV at Worldgate 00000 Xxxxxxxxx Xxxxx
49 58427 BOFA Xxxxxxxxx Center 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
50 58503 BOFA Veritas XXX Xxxxxxxxxxxx 00000 Xxxx Xxxx Xxxxx
51 53054 BOFA Trinity Centre I 0000 Xxxxxxx Xxxxxxx
52 53224 BOFA Trinity Centre III 0000 Xxxxxxx Xxxxxxx
Sub-Total Crossed Loans
53 58452 BOFA Xxxxx Fargo Home Mortgage Office Building 0000 Xxxxxxxxx Xxxxxxxxx
54 58465 BOFA Calabasas Corporate Center 0000 Xxx Xxxxxxxx Xxxx
55 8932 BOFA West County Professional Building 14120-14180 Xxxxx Xxxxxxxxx
00 00000 XXXX Medical Mutual of Ohio - Beachwood 23700 Commerce Xxxx Xxxx
00 00000 XXXX The Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxx Xxxxxx
00 00000 XXXX Baylor Medical Plaza 6435 South FM 549
59 58145 BOFA Atrium Northwood Office Complex 7301 Rivers Avenue
60 10371 XXXX Xxxxxx Xxxxx 000 Xxxxxx Xxxxxx
00 00000 BOFA Xxx Xxxx Xxxxxx 0000 Xxx Xxxxxx
62 10069 BOFA Bank of America Building- Lynnwood 0000 000xx Xxxxxx Xxxxxxxxx
63 58437 BOFA Tustin Business Park and Self-Lock Mini Storage 1542-1652 Xxxxxxx Avenue, 15012-15102
Red Hill Avenue, 0000-00000 Xxxx Xxx
Xxxx, and 0000 Xxxxxxx Xxxxxxx
64 58502 BOFA Georgia Pacific 00000 Xxxxx Xxxxxxxx Xxxxxx
65 58523 BOFA West Oak Self Storage 0000 Xxxxxxxxx Xxxx
66 58467 BOFA Coldwater Self Storage 0000 Xxxxxxxxx Xxxxxx Xxxxxx
67 10416 BOFA Xxxxxx Self Storage - Market Street 5811 Market Xxxxxx
00 00000 XXXX Xxxxxxxx - Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxx
69 58483 BOFA Xxxx Xxxxx/ Montpelier Self Storage 00000 Xxxxxxxx Xxxx and 15066 Xxxxxxx
Xxxxxx Xxxx
00 00000 XXXX Guardian Self Storage 0000 Xxxx Xxxx Xxxxxx
71 11273 BOFA Stoway Mini Storage 0000 Xxxxxxxxx Xxxxxx
72 58450 BOFA Rockledge Self Storage 0000 Xxxxxxxxxx Xxxx and 000-000 Xxxxxxx Xxxx
73 58316 BOFA Xxxxx Portfolio - Forest Hills Village 0000 Xxxxxxx Xxxxxx
74 58265 BOFA Xxxxx Portfolio - Hollywood Estates 000 Xxxxxxxxx Xxxxxxxxx
75 10437 XXXX Xxxxxx Xxxxx XXX 00000 Red Arrow Highway
76 10432 BOFA Hampton Inn - Alexandria 0000 Xxxxxxxx Xxxx
77 58500 BOFA Xxxxxxx Xxx - Xxxxxxxxxxx 0000 Apalachee Parkway
78 9935 BOFA Fairfield Suites Jupiter 0000 Xxxx Xxxxxxxxxx Xxxx
79 57800 BOFA Jefferson at Providence Place Ground Lease 0000 Xxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
Sequence Mortgage Amortization Original
Number City State Zip Code Rate (%) Basis Balance
---------------------------------------------------------------------------------------------------------------------
1 Xxx Xxxxx XX 00000 4.952% ACT/360 $28,300,000
2 Xxxxxx XX 00000 4.875% ACT/360 21,500,000
3 Xxx Xxxx XX 00000 5.050% ACT/360 18,900,000
4 Xxxxxx XX 00000 4.755% ACT/360 14,200,000
5 Xxxxxxxxxx XX 00000 4.710% ACT/360 13,300,000
6 Xxxxxxxxx XX 00000 4.835% ACT/360 12,000,000
7 Xxxxxxx XX 00000 4.958% ACT/360 11,200,000
8 Xxxxx XX 00000 4.800% ACT/360 10,720,000
9 Xxxxxxxxx XX 00000 5.471% ACT/360 6,000,000
10 Xxxxxxxx XX 00000 5.613% ACT/360 4,200,000
11 Xxxxxxxx XX 00000 5.327% ACT/360 3,200,000
12 Xxxx Xxxx XX 00000 5.452% ACT/360 2,950,000
13 Xxxxxxxx XX 00000 5.400% ACT/360 2,300,000
14 Xxxxxxx XX 00000 4.747% ACT/360 68,250,000
15 Xxxxxxxxxxx XX 00000 5.890% ACT/360 47,903,549
16.1 Xxxxxxxxx XX 00000 31,020,408
16.2 Xxxxxxxxx XX 00000 4,071,429
16.3 Xxxxxxxxx XX 00000 2,908,163
16 Xxxxxxxxx XX 00000 5.807% ACT/360 38,000,000
17 Xxxxxxxxxx XX 00000 5.255% ACT/360 24,800,000
18 Xxxxxxxxxxxx XX 00000 5.235% ACT/360 18,580,000
19 Xxxxxxxxx XX 00000 5.208% ACT/360 18,000,000
20 Xxxxxxx XX 00000 5.235% ACT/360 17,900,000
21 Xxx Xxxxxxx XX 00000 5.300% ACT/360 15,200,000
00 Xxxxx Xxxx XX 00000 5.241% ACT/360 15,000,000
23 Xxxxxxx XX 00000 5.500% ACT/360 13,200,000
24 Xxxxxxx XX 00000 5.402% ACT/360 12,705,000
25 Xxxxxxx Xxxxx XX 00000 6.086% ACT/360 11,520,000
26 Xxxxxxxxxxxx XX 00000 5.240% ACT/360 11,220,000
00 Xxxx Xxxxx XX 00000 5.403% ACT/360 8,500,000
00 Xxx Xxxx Xxxxxx XX 00000 4.682% 30/360 7,098,000
00 Xxxxx Xxxxxxxx Xxxxx XX 00000 5.751% ACT/360 6,600,000
30 Xxxxxxx XX 00000 5.267% ACT/360 6,400,000
31 Xxxxxxxx XX 00000 5.349% ACT/360 5,900,000
32 Xxxxxxx Xxxx XX 00000 6.000% ACT/360 5,800,000
33 Xxxxxxxxxxx XX 00000 5.300% ACT/360 5,600,000
00 Xxxxxxx Xxxxxxx XX 00000 5.500% ACT/360 5,300,000
00 Xxxxx Xx Xxxxxxx XX 00000 5.349% ACT/360 5,100,000
36 Xxxxxxxxxxx XX 00000 4.685% 30/360 4,994,000
37 Xxxxxxxxx XX 00000 5.349% ACT/360 4,950,000
00 Xxxxxxxx Xxxx XX 00000 5.960% ACT/360 4,000,000
00 Xxxxx Xxxx XX 00000 5.241% ACT/360 3,750,000
00 Xxxxx Xx Xxxxxxx XX 00000 5.272% ACT/360 3,500,000
41 Xxxxxxx XX 00000 5.609% ACT/360 3,500,000
42 Xxxxxx XX 00000 5.080% ACT/360 3,000,000
43 Xxxxxxx XX 00000 5.900% ACT/360 2,250,000
44 Xxxxxxxxx XX 00000 5.968% ACT/360 2,150,000
00 Xxxxx Xxxxx XX 00000 5.750% ACT/360 2,100,000
46 Xxxxxxx XX 00000 5.450% ACT/360 1,807,500
47 Xxxxxxx XX 00000 4.976% ACT/360 97,504,000
00 Xxxxxxx XX 00000 5.289% ACT/360 38,000,000
49 Xxx Xxxxxxx XX 00000 5.470% ACT/360 28,000,000
50 Xxxxxxx XX 00000 5.410% ACT/360 23,910,000
51 Xxxxxxxxxxx XX 00000 6.500% ACT/360 22,200,000
52 Xxxxxxxxxxx XX 00000 6.500% ACT/360 13,575,000
35,775,000
53 Xxxx Xxxx XX 00000 5.373% ACT/360 20,300,000
54 Xxxxxxxxx XX 00000 5.485% ACT/360 12,150,000
55 Xxxxxxxxxxx XX 00000 6.199% ACT/360 7,250,000
56 Xxxxxxxxx XX 00000 5.667% ACT/360 6,616,000
57 Xxxxxx XX 00000 5.750% ACT/360 6,200,000
58 Xxxxx XX 00000 5.162% ACT/360 5,625,000
00 Xxxxx Xxxxxxxxxx XX 00000 6.340% ACT/360 5,600,000
60 Xxxx Xxxxx XX 00000 5.800% ACT/360 3,412,500
00 Xxxxxxxxxx XX 00000 5.500% ACT/360 3,200,000
62 Xxxxxxxx XX 00000 5.800% ACT/360 2,300,000
63 Xxxxxx XX 00000 5.669% ACT/360 18,000,000
64 Xxx Xxxxxxx XX 00000 5.405% ACT/360 5,920,000
00 Xxxxxxxx Xxxx XX 00000 5.293% ACT/360 7,500,000
00 Xxxxx Xxxxxxxxx XX 00000 5.457% ACT/360 5,750,000
67 Xxxxxxxxxx XX 00000 5.900% ACT/360 3,963,634
68 Xxxx Xxxxxx XX 00000 5.120% ACT/360 3,950,000
00 Xxxx Xxxxx xxx Xxxxxxxxxx XX 00000/00000 5.595% ACT/360 3,000,000
70 Xxxxx XX 00000 5.635% ACT/360 2,760,000
71 Xxxxxxxx Xxxx XX 00000 5.700% ACT/360 2,700,000
72 Xxxxxxxxx XX 00000 5.635% ACT/360 2,000,000
00 Xxxxx Xxxx XX 00000 5.375% ACT/360 18,450,000
74 Xxxxxxxx XX 00000 5.521% ACT/360 4,720,000
75 Xxxxxxxx XX 00000 5.750% ACT/360 3,000,000
76 Xxxxxxxxxx XX 00000 6.350% ACT/360 9,100,000
77 Xxxxxxxxxxx XX 00000 6.040% ACT/360 5,000,000
78 Xxxxxxx XX 00000 5.730% ACT/360 4,500,000
79 Xxxxxxxxxx XX 00000 5.235% ACT/360 9,000,000
---------------------------------------------------------------------------------------------------------------------
Remaining
Term To Primary
Stated Stated Servicing
Sequence Cut-off Maturity Maturity Monthly Administrative Fee
Number Balance (months) Date Due Date Payment Fee Rate
------------------------------------------------------------------------------------------------------------------------------------
1 $28,300,000 84 12/1/2011 1st $151,091 0.122% 0.100%
2 21,500,000 60 12/1/2009 1st 0 0.122% 0.100%
3 18,900,000 61 1/1/2010 1st 0 0.122% 0.100%
4 14,182,151 59 11/1/2009 1st 74,117 0.122% 0.100%
5 13,300,000 60 12/1/2009 1st 0 0.122% 0.100%
6 12,000,000 60 12/1/2009 1st 63,214 0.122% 0.100%
7 11,186,438 119 11/1/2014 1st 59,837 0.122% 0.100%
8 10,720,000 58 10/1/2009 1st 56,244 0.122% 0.100%
9 6,000,000 82 10/1/2011 1st 33,958 0.082% 0.060%
10 4,200,000 118 10/1/2014 1st 24,146 0.072% 0.050%
11 3,200,000 120 12/1/2014 1st 17,823 0.072% 0.050%
12 2,946,741 59 11/1/2009 1st 16,661 0.102% 0.080%
13 2,295,205 118 10/1/2014 1st 12,915 0.102% 0.080%
14 67,935,229 56 8/1/2009 1st 352,818 0.042% 0.020%
15 47,903,549 115 7/1/2014 1st 283,827 0.042% 0.020%
16.1 31,020,408
16.2 4,071,429
16.3 2,908,163
16 38,000,000 115 7/1/2014 1st 226,013 0.122% 0.100%
17 24,800,000 120 12/1/2014 1st 137,023 0.122% 0.100%
18 18,518,315 81 9/1/2011 1st 102,427 0.122% 0.100%
19 18,000,000 120 12/1/2014 1st 98,929 0.082% 0.060%
20 17,840,573 81 9/1/2011 1st 98,678 0.122% 0.100%
21 15,182,727 119 11/1/2014 1st 84,406 0.122% 0.100%
22 15,000,000 120 12/1/2014 1st 82,747 0.122% 0.100%
23 13,173,063 118 10/1/2014 1st 74,948 0.122% 0.100%
24 12,705,000 120 12/1/2014 1st 71,358 0.122% 0.100%
25 11,478,463 116 8/1/2014 1st 69,706 0.122% 0.100%
26 11,182,788 81 9/1/2011 1st 61,888 0.122% 0.100%
27 8,500,000 120 12/1/2014 1st 47,746 0.122% 0.100%
28 7,098,000 84 12/1/2011 1st 0 0.122% 0.100%
29 6,600,000 117 9/1/2014 1st 38,520 0.122% 0.100%
30 6,400,000 120 12/1/2014 1st 35,408 0.122% 0.100%
31 5,893,357 119 11/1/2014 1st 32,943 0.122% 0.100%
32 5,789,395 118 10/1/2014 1st 34,774 0.122% 0.100%
33 5,588,073 118 10/1/2014 1st 31,097 0.122% 0.100%
34 5,294,199 119 11/1/2014 1st 30,093 0.122% 0.100%
35 5,094,257 119 11/1/2014 1st 28,476 0.122% 0.100%
36 4,994,000 84 12/1/2011 1st 0 0.122% 0.100%
37 4,944,426 119 11/1/2014 1st 27,638 0.122% 0.100%
38 3,988,567 117 9/1/2014 1st 23,879 0.072% 0.050%
39 3,750,000 120 12/1/2014 1st 20,687 0.122% 0.100%
40 3,496,002 119 11/1/2014 1st 19,375 0.122% 0.100%
41 3,475,607 178 10/1/2019 1st 28,801 0.122% 0.100%
42 3,000,000 118 10/1/2014 1st 0 0.122% 0.100%
43 2,245,793 118 10/1/2014 1st 13,346 0.072% 0.050%
44 2,146,041 118 10/1/2014 1st 12,846 0.072% 0.050%
45 2,095,941 118 10/1/2014 1st 12,255 0.072% 0.050%
46 1,802,089 58 10/1/2009 1st 11,046 0.072% 0.050%
47 97,504,000 84 12/1/2011 1st 0 0.042% 0.020%
48 38,000,000 81 9/1/2011 1st 210,756 0.122% 0.100%
49 28,000,000 118 10/1/2014 1st 158,454 0.122% 0.100%
50 23,910,000 130 10/1/2015 1st 134,411 0.122% 0.100%
51 21,650,321 92 8/1/2012 1st 140,319 0.122% 0.100%
52 13,238,879 92 8/1/2012 1st 85,803 0.122% 0.100%
34,889,200
53 20,300,000 113 5/1/2014 1st 113,649 0.122% 0.100%
54 12,125,126 120 12/1/2014 1st 68,872 0.122% 0.100%
55 7,237,325 118 10/1/2014 1st 44,399 0.082% 0.060%
56 6,602,979 118 10/1/2014 1st 38,261 0.122% 0.100%
57 6,181,481 117 9/1/2014 1st 36,182 0.122% 0.100%
58 5,618,441 59 11/1/2009 1st 30,756 0.122% 0.100%
59 5,580,938 116 8/1/2014 1st 34,809 0.122% 0.100%
60 3,402,413 117 9/1/2014 1st 20,023 0.072% 0.050%
61 3,183,809 55 7/1/2009 1st 18,169 0.092% 0.070%
62 2,297,621 119 11/1/2014 1st 13,495 0.072% 0.050%
63 17,980,916 119 11/1/2014 1st 104,119 0.122% 0.100%
64 5,920,000 120 12/1/2014 1st 33,261 0.122% 0.100%
65 7,500,000 119 11/1/2014 1st 41,615 0.122% 0.100%
66 5,740,986 119 11/1/2014 1st 35,163 0.122% 0.100%
67 3,955,683 117 9/1/2014 1st 23,534 0.102% 0.080%
68 3,950,000 120 12/1/2014 1st 21,495 0.122% 0.100%
69 2,996,775 119 11/1/2014 1st 17,213 0.122% 0.100%
70 2,757,055 119 11/1/2014 1st 15,906 0.122% 0.100%
71 2,695,921 119 11/1/2014 1st 16,904 0.072% 0.050%
72 1,997,866 119 11/1/2014 1st 11,526 0.122% 0.100%
73 18,354,052 55 7/1/2009 1st 103,315 0.122% 0.100%
74 4,720,000 55 7/1/2009 1st 26,860 0.122% 0.100%
75 2,994,202 118 10/1/2014 1st 17,507 0.092% 0.070%
76 9,064,095 117 9/1/2014 1st 60,594 0.072% 0.050%
77 4,992,829 119 11/1/2014 1st 32,337 0.122% 0.100%
78 4,500,000 60 12/1/2009 1st 28,255 0.072% 0.050%
79 8,989,648 119 11/1/2014 1st 49,615 0.122% 0.100%
------------------------------------------------------------------------------------------------------------------------------------
Totals/Weighted
Average $956,589,348
------------------------------------------------------------------------------------------------------------------------------------
Master
Servicing Original
Sequence Fee Ownership Amortization
Number Rate Interest Crossed (months) ARD Loan Grace Period
---------------------------------------------------------------------------------------------------------------------------
1 0.020% Fee No 360 No 5
2 0.020% Fee No 0 No 5
3 0.020% Fee No 0 Yes 10
4 0.020% Fee No 360 No 10
5 0.020% Fee No 0 Yes 5
6 0.020% Fee No 360 No 10
7 0.020% Fee No 360 No 10
8 0.020% Fee No 360 No 5
9 0.020% Fee/Leasehold No 360 No 5
10 0.020% Fee No 360 No 5
11 0.020% Fee No 360 No 5
12 0.020% Fee No 360 No 5
13 0.020% Fee No 360 No 5
14 0.020% Fee No 360 No 10
15 0.020% Fee No 360 No 5
16.1 No
16.2 No
16.3 No
16 0.020% Fee No 348 No 10
17 0.020% Fee No 360 No 5
18 0.020% Fee No 360 Yes 5
19 0.020% Fee No 360 No 5
20 0.020% Fee No 360 Yes 5
21 0.020% Fee No 360 No 5
22 0.020% Fee No 360 No 5
23 0.020% Fee No 360 No 10
24 0.020% Fee No 360 No 5
25 0.020% Fee No 360 No 15
26 0.020% Fee No 360 Yes 5
27 0.020% Fee No 360 No 5
28 0.020% Fee No 0 No 5
29 0.020% Fee No 360 No 5
30 0.020% Fee No 360 No 5
31 0.020% Fee No 360 No 5
32 0.020% Fee No 360 No 5
33 0.020% Fee No 360 No 10
34 0.020% Fee No 360 No 5
35 0.020% Fee No 360 No 5
36 0.020% Fee No 0 No 5
37 0.020% Fee No 360 No 5
38 0.020% Fee No 360 No 5
39 0.020% Fee No 360 No 5
40 0.020% Fee No 360 No 5
41 0.020% Fee No 180 No 5
42 0.020% Fee No 0 No 5
43 0.020% Fee No 360 No 5
44 0.020% Fee No 360 No 5
45 0.020% Fee No 360 No 5
46 0.020% Fee No 300 No 5
47 0.020% Fee No 0 No 0
48 0.020% Fee No 360 No 10
49 0.020% Fee No 360 No 5
50 0.020% Fee No 360 No 10
51 0.020% Fee Yes(BACM 04-6-C) 360 No 0
52 0.020% Fee Yes(BACM 04-6-C) 360 No 0
53 0.020% Fee No 360 No 10
54 0.020% Fee No 360 No 5
55 0.020% Fee No 360 No 5
56 0.020% Fee No 360 No 5
57 0.020% Fee No 360 No 5
58 0.020% Fee No 360 No 5
59 0.020% Fee No 360 No 5
60 0.020% Fee No 360 No 5
61 0.020% Fee No 360 No 10
62 0.020% Fee No 360 No 5
63 0.020% Leasehold No 360 No 5
64 0.020% Fee No 360 No 5
65 0.020% Fee No 360 No 5
66 0.020% Fee No 300 No 5
67 0.020% Fee No 359 No 5
68 0.020% Fee No 360 No 5
69 0.020% Fee/Leasehold No 360 No 5
70 0.020% Fee No 360 No 5
71 0.020% Fee No 300 No 5
72 0.020% Fee No 360 No 5
73 0.020% Fee No 360 No 0
74 0.020% Fee No 360 No 0
75 0.020% Fee No 360 No 5
76 0.020% Fee No 300 No 5
77 0.020% Fee No 300 No 5
78 0.020% Fee No 300 No 5
79 0.020% Fee No 360 No 10
---------------------------------------------------------------------------------------------------------------------------
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever and
the Seller has full right, power and authority to sell, transfer and
assign each Mortgage Loan free and clear of all such liens, claims,
pledges, charges and interests or encumbrances. The Seller has
validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to such Mortgage Loan. The sale of the
Mortgage Loans to the Purchaser does not require the Seller to
obtain any governmental or regulatory approval or consent that has
not been obtained. Each Mortgage Note is, or shall be as of the
Closing Date, properly endorsed to the Trustee and each such
endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized
Group; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property. An assignment of each UCC Financing Statement
relating to the Mortgage Loan has been delivered by Seller in blank
which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which
such UCC Financing Statement was filed. Each Mortgage Loan and the
related Mortgage (along with any security agreement and UCC
Financing Statement), together with applicable state law, contain
customary and enforceable provisions such as to render the rights
and remedies of the holders thereof adequate for the practical
realization against the personal property described above, and the
principal benefits of the security intended to be provided thereby;
provided, if the related security agreement and/or UCC Financing
Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, no representation is made as to the
perfection of any security interest in rents or any other personal
property to the extent that the possession or control of such items
or actions other than the filing of the UCC Financing Statement as
required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. All
such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be
reduced) without 30 days' prior written notice to the mortgagee (or,
with respect to non-payment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as
described above or permits the mortgagee to require insurance as
described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. The Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy
will (or, at the lender's option, will) be applied either to the
repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the
related Mortgage may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the
Mortgage Loan; and provided, further, that, if the related Borrower
holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more environmental site
assessments meeting the requirements of the American Society for
Testing and Materials in effect at the time the related report was
or the related reports were prepared covering all environmental
hazards typically assessed for similar properties including use,
type and tenants of the Mortgaged Property (an "Environmental
Report"), or an update of such an assessment, was performed by an
experienced licensed (to the extent required by applicable state
law) environmental consulting firm with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination
of such Mortgage Loan and thereafter updated such that, (a) such
Environmental Report is dated no earlier than twelve months prior to
the Closing Date, (b) a copy of each such Environmental Report has
been delivered to the Purchaser; and (c) either: (i) no such
Environmental Report provides that as of the date of the report
there is a material violation of any applicable environmental laws
with respect to any circumstances or conditions relating to the
related Mortgaged Property; or (ii) if any such Environmental Report
does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not been subsequently
remediated in all material respects, then one or more of the
following are true--(A) a party not related to the related Mortgagor
with financial resources reasonably adequate to cure the subject
violation in all material respects was identified as the responsible
party for such condition or circumstance, (B) the related Mortgagor
was required to provide additional security adequate to cure the
subject violation in all material respects and to obtain an
operations and maintenance plan, (C) such conditions or
circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant
recommended no further investigation or remediation, or recommended
only the implementation of an operations and maintenance program,
which the Mortgagor is required to do, (D) there exists an escrow of
funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (E) the related Mortgaged Property is
insured under a policy of insurance against losses arising from such
circumstances and conditions, (F) the circumstance or condition has
been fully remediated, (G) the related Mortgagor provided a "no
further action" letter or other evidence acceptable to the Seller
and that would be acceptable to a reasonably prudent lender, that
applicable federal, state or local governmental authorities had no
current intention of taking any action, and are not requiring any
action, in respect of such condition or circumstance, (H) the
expenditure of funds reasonably estimated to be necessary to effect
such remediation is the lesser of (a) 2% of the outstanding
principal balance of the related Mortgage Loan and (b) $200,000, (I)
the related Mortgagor or another responsible party is currently
taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental
regulatory authority, or (J) a responsible party with financial
resources reasonably adequate to cure the violation provided a
guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation. To
the Seller's actual knowledge and without inquiry beyond the related
Environmental Report, there are no significant or material
circumstances or conditions with respect to any Mortgaged Property
not revealed in any such Environmental Report, where obtained, or in
any Mortgagor questionnaire delivered to Seller at the issue of any
related environmental insurance policy, if applicable, that render
such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage, or other Loan Document in the
Mortgage File, for each Mortgage Loan encumbering the Mortgaged
Property requires the related Mortgagor to comply and cause the
Mortgaged Property to comply with all applicable federal, state and
local environmental laws and regulations. The Seller has not taken
any action which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws pertaining to
environmental hazards or which could subject the Seller or its
successors and assigns to liability under such laws. Each Mortgagor
represents and warrants in the related Loan Documents generally to
the effect that except as set forth in certain specified
environmental reports and to the best of its knowledge that as of
the date of origination of such Mortgage Loan, there were no
hazardous materials on the related Mortgaged Property, and that the
Mortgagor will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials, in any manner which
violates federal, state or local laws, ordinances, regulations,
orders, directives, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor
(or an affiliate thereof) has agreed to indemnify, defend and hold
the Seller and its successors and assigns harmless from and against,
or otherwise be liable for, any and all losses resulting from a
breach of environmental representations, warranties or covenants
given by the Mortgagor in connection with such Mortgage Loan,
generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization or for the negative amortization of interest, except
that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated
Repayment Date and continuing until such Mortgage Loan is paid in
full, (a) additional interest shall accrue and may be compounded
monthly and shall be payable only after the outstanding principal of
such Mortgage Loan is paid in full, and (b) subject to available
funds, a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal
balance thereof in addition to the principal portion of the related
Monthly Payment. Neither the Seller nor any affiliate thereof has
any obligation to make any capital contribution to the Mortgagor
under the Mortgage Loan or otherwise nor holds any equity interest
in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since October 19, 2004.
The Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgage Loan
or materially interferes with the security intended to be provided
by such Mortgage. The terms of the related Mortgage do not provide
for release of any material portion of the Mortgaged Property from
the lien of the Mortgage except (a) in consideration of payment
therefor equal to not less than 125% of the related allocated loan
amount of such Mortgaged Property specifically set forth in the
related Loan Documents, (b) upon payment in full of such Mortgage
Loan, (c) Mortgage Loans which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more
of such Mortgaged Properties) "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to pay
the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) when due, and in the case of
ARD Loans, assuming the Anticipated Repayment Date is the Stated
Maturity Date. Further, the Mortgage or other related Loan Document
contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities
are sufficient to make all such scheduled payments when due. To
Seller's actual knowledge, defeasance under the Mortgage Loan is
only for the purpose of facilitating the release of the Mortgaged
Property and not as a part of an arrangement to collateralize a
REMIC with obligations that are not real estate mortgages. With
respect to each Defeasance Loan, the related Mortgage or other
related Loan Document provides that the related Mortgagor shall (or
permits the mortgagee to require the Mortgagor to) (a) pay all
Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions reasonably required by the mortgagee under the
related Loan Documents, including, if applicable, a REMIC opinion
and a perfection opinion and any applicable rating agency letters
confirming no downgrade or qualification of ratings on any classes
in the transaction. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the
Mortgage Loan or the related documents require (or permit the
mortgagee to require) confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or
withdrawal of the rating assigned to any securities backed by the
Mortgage Loan and require (or permit the mortgagee to require) the
Mortgagor to pay any Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a
legal non-conforming use or structure, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide, or
which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified
under applicable law to serve as such, has either been properly
designated and currently so serves or may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor was in possession of all material licenses,
permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20 million shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the
related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted
a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage
Loans secured by Ground Leases, each of the Mortgagors (or its
affiliates) has title in the fee simple interest in each related
Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal; if any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such Mortgage Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified
margin not less than 2 percent (2%); the Anticipated Repayment Date
of any such Mortgage Loan is not less than 7 years from the date of
origination; and after the Anticipated Repayment Date, the Loan
Documents provide that excess cash flow after payment of expenses,
including scheduled interest and capital expenditures approved by
the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required
under applicable law as of the date of origination, and necessary
for the enforceability or collectability of the Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No
Financing for Incomplete Improvements. No Mortgage Loan, other than
an ARD Loan (and then only after the Anticipated Repayment Date for
such ARD Loan), provides for the negative amortization of interest.
Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the purpose of
financing the construction of incomplete improvements on the related
Mortgaged Property other than tenant improvements.
(49) No Fraud. Neither the Seller, the originator, nor any
employee or agent of the Seller or the originator has participated
in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Mortgagor or guarantor is guilty of
defrauding or making an intentional material misrepresentation to
the Seller with respect to the origination of the Mortgage Loan, the
Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for delinquent Monthly Payments no longer
than 10 days from the applicable Due Date other than as disclosed in
the Mortgage Loan Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the
appraisal or a supplemental letter from the appraiser states that
the appraisal satisfies the appraisal guidelines set forth in Title
XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (as amended), all as in effect on the date the Mortgage
Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the
Prospectus Supplement, (a) no Mortgagor is the Mortgagor with
respect to more than one Mortgage Loan and (b) to the Seller's
knowledge, no group of Mortgage Loans with affiliated mortgagors
have an aggregate principal balance equaling more than
$47,541,676.34.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to
the insurer under such policy copies of all
environmental reports in the Seller's possession related
to such Mortgaged Property,
in each case with respect to (i) and (ii) to the
extent required by such policy or to the extent the
failure to make any such disclosure or deliver any such
report would materially and adversely affect the
Purchaser's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
REPRESENTATION 3
Good Title; Conveyance.
-----------------------
--------------------------------------------------------------------------------
Steeplegate Mall (58318) Paragraph 5 of Exhibit B, Schedule I to the
related title insurance policy states that a tax
lien affects Tract V of the Mortgaged Property.
Tract V consists of certain drainage easements
over an abutting parcel which affect Tract I of
the Mortgaged Property. The owner of the abutting
parcel agreed with the city of Concord not to
develop it, thereby receiving a significant
reduction in real estate taxes. If the owner of
such parcel decides in the future to develop the
abutting parcel, such owner must pay a penalty of
10% of such parcel's value (called a Land Use
Change Tax). The related city has a lien which is
called a Land Use Taxation Lien to secure payment
of any land use change tax that may become due in
the future.
--------------------------------------------------------------------------------
REPRESENTATION 9
Mortgage Lien.
--------------
--------------------------------------------------------------------------------
Tustin Business Park and The related legal description of the fee estate
Self-Lock Mini Storage excepts "any portion of said land described in
(58437) the Deed to the City of Tustin". Additionally,
the related pro forma title policy excepts from
coverage a certain covenant and agreement
executed by Xxx Xxxxx Company, Inc. and the fact
that the related Mortgaged Property lies within a
project area of the redevelopment agency and that
proceedings for the redevelopment of the related
project have been instituted.
--------------------------------------------------------------------------------
Steeplegate Mall (58318) Paragraph 5 of Exhibit B, Schedule I to the
related title insurance policy states that a tax
lien affects Tract V of the Mortgaged Property.
Tract V consists of certain drainage easements
over an abutting parcel which affect Tract I of
the Mortgaged Property. The owner of the abutting
parcel agreed with the city of Concord not to
develop it, thereby receiving a significant
reduction in real estate taxes. If the owner of
such parcel decides in the future to develop the
abutting parcel, such owner must pay a penalty of
10% of such parcel's value (called a Land Use
Change Tax). The related city has a lien which is
called a Land Use Taxation Lien to secure payment
of any land use change tax that may become due in
the future.
--------------------------------------------------------------------------------
REPRESENTATION 12
Condition of Property; No Condemnation; No Encroachments.
---------------------------------------------------------
--------------------------------------------------------------------------------
3415 Xxxxxxxxx (58427) A portion of the related Mortgaged Property is
subject to a condemnation proceeding. The related
title insurance covers any forced removal of
improvements due to such condemnation.
--------------------------------------------------------------------------------
Trinity Centre I (53054) Upon the occurrence of the street dedication
required pursuant to proffer 20 of Proffered
Condition Amendment/Final Development Plan
Amendment PCA/FDPA 86-S-071 recorded in Deed Book
10651, at Page 1162 of the Fairfax County
recorder's office, the related Mortgagee is
required to release the portion of the related
Mortgaged Property described on Exhibit E to the
related loan agreement from the lien of the
related deed of trust and the subordinate deed of
trust, if applicable. The portion of the related
Mortgaged Property described on Exhibit E to the
related loan agreement was not attributed any
value in the appraisal.
--------------------------------------------------------------------------------
REPRESENTATION 14
Insurance.
----------
--------------------------------------------------------------------------------
Trinity Centre I (53054) The related business interruption insurance
Trinity Centre III (53224) coverage lasts until such time as the restoration
is completed notwithstanding that the insurance
policy may expire prior to the end of such period
and such insurance policy is required to contain
an extended period of indemnity endorsement which
provides that after the physical loss to the
improvements and personal property has been
repaired, the continued loss of income will be
insured until such income either returns to the
sale level it was at prior to the loss or the
expiration of six months.
The related insurance policies are required to be
issued by financially sound and responsible
insurance companies authorized to do business in
the state and having a claims paying ability
rating of "AA-" or better by at least two rating
agencies, one of which must be S&P, or such other
rating agencies approved by Mortgagee, or through
a syndicate of insurers authorized to do business
in the state and through which (i) at least 50%
of the coverage is provided by insurers with a
claims paying ability rating of "A" or better by
at least two rating agencies, one of which must
be S&P, (ii) at least 10% of the coverages
(exclusive of that referenced in clause (i)
above) is provide by insurers with a claims
paying ability rating of "BBB" or better by at
least two rating agencies, one of which must be
S&P, and (iii) not more than 35% of the coverage
is provided by insurers that are not rated by the
rating agencies, but which carry a claims paying
ability rating of not less than "B++" and a
financial size rating of not less than "VIII"
from A. M. Best & Co.
--------------------------------------------------------------------------------
Steeplegate Mall (58318) The related Mortgagor is required to maintain
business interruption or rent loss insurance in
an amount equal to the estimated gross revenue of
the Mortgaged Property for the restoration period
plus 60 days.
The related insurer for all of the required
coverages set forth in the related Mortgage Loan
documents is not required to have a claims paying
ability rating from Standard & Poor's, Xxxxx'x or
Fitch of not less than A-minus (or the
equivalent), or from A.M. Best of not less than
"A:V" (or the equivalent).
The related Mortgagor's requirement to maintain
insurance against damage and business
interruption resulting from acts of terrorism is
limited by commercially reasonable availability
and commercially reasonable cost.
--------------------------------------------------------------------------------
REPRESENTATION 15
No Material Defaults.
---------------------
--------------------------------------------------------------------------------
Wal-Mart Supercenter - Pursuant to a post closing agreement, the
Douglasville related Mortgagor was to deliver (i) an estoppel
to the related Mortgagee within 45 days of the
closing of the related Mortgage Loan, (b) a
certain Tenant Direction Letter to Mortgagee
within 30 days of the closing of the related
Mortgage Loan, and (c) a certain Subordination,
Non-disturbance and Attornment Agreement to
Xxxxxxxx Escrow and Title Company within 30 days
of the closing of the related Mortgage Loan.
--------------------------------------------------------------------------------
REPRESENTATION 22
Whole Loan; Interest Only; No Equity Participation or Contingent Interest.
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
The Shoppes at Golden Acres The related Mortgage Loan is interest only for
(58545) the entire term.
--------------------------------------------------------------------------------
Southwood Village Shopping The related Mortgage Loan is interest only for
Center (58546) the entire term.
--------------------------------------------------------------------------------
Xxxx 'Bout Xxxxx (58586) The related Mortgage Loan is interest only
through and including the payment date occurring
on December 1, 2007.
--------------------------------------------------------------------------------
King's Crossing (58563) The related Mortgage Loan is interest only
through and including the payment date occurring
on December 1, 2005.
--------------------------------------------------------------------------------
Barrington at Park Place The related Mortgage Loan is interest only for
(58587) the entire term.
--------------------------------------------------------------------------------
Park Laureate Apartments The related Mortgage Loan is interest only for
(58564) the entire term.
--------------------------------------------------------------------------------
Hillside Sedona (58499) The related Mortgage Loan is interest only for
the entire term.
--------------------------------------------------------------------------------
Monument IV at Worldgate-A The related Mortgage Loan is interest only
Note (58440) through and including the payment date occurring
on September 1, 2006.
--------------------------------------------------------------------------------
Cupertino Village I, II & III The related Mortgage Loan is interest only
(58112) through and including the payment date occurring
on July 1, 2005.
--------------------------------------------------------------------------------
Xxxxxxxxx Center (58427) The related Mortgage Loan is interest only
through and including the payment date occurring
on October 1, 2006.
--------------------------------------------------------------------------------
Lexington Hills Apartments The related Mortgage Loan is interest only
(58353) through and including the payment date occurring
on October 1, 2006.
--------------------------------------------------------------------------------
West Oak Self Storage (58523) The related Mortgage Loan is interest only
through and including the payment date occurring
on November 1, 2006.
--------------------------------------------------------------------------------
Rufe Snow Village Shopping The related Mortgage Loan is interest only
Center (58307) through and including the payment date occurring
on September 1, 2005.
--------------------------------------------------------------------------------
Xxxx Shopping Center (58524) The related Mortgage Loan is interest only
through and including the payment date occurring
on December 1, 2007.
--------------------------------------------------------------------------------
Georgia Pacific (58502) The related Mortgage Loan is interest only
through and including the payment date occurring
on December 1, 2007.
--------------------------------------------------------------------------------
Xxxxx Portfolio - Hollywood The related Mortgage Loan is interest only
Estates (00000) xxxxxxx and including the payment date occurring
on July 1, 2005.
--------------------------------------------------------------------------------
Veritas DGC Headquarters The related Mortgage Loan is interest only
(58503) through and including the payment date occurring
on November 1, 2009.
--------------------------------------------------------------------------------
Xxxxx Fargo Home Mortgage The related Mortgage Loan is interest only
Office Building (58452) through and including the payment date occurring
on October 1, 2007.
--------------------------------------------------------------------------------
Simon - Upper Valley Mall The related Mortgage Loan is interest only
(58294) through and including the payment date occurring
on July 1, 2009.
--------------------------------------------------------------------------------
Legacy at Museum (58583) The related Mortgage Loan is interest only
through and including the payment date occurring
on January 1, 2010.
--------------------------------------------------------------------------------
REPRESENTATION 23
Transfers and Subordinate Debt.
-------------------------------
--------------------------------------------------------------------------------
Trinity Centre I (53054) The related Mortgage Loan documents permit
mezzanine indebtedness secured by a pledge of
Trinity Centre III (53224) ownership interests in the related Mortgagor.
Park Laureate Apartments
(58564)
Xxxxx Portfolio - Forest
Hills Village (58316)
Xxxxx Portfolio - Hollywood
Estates (58265)
Barrington at Park Place
(58587)
Post Oak Central (58484)
Xxxx Shopping Center (58524)
King's Crossing (58563)
--------------------------------------------------------------------------------
Trinity Centre I (53054) Each related Mortgaged Property is encumbered by
a subordinate deed of trust in the amount of
Trinity Centre III (53224) $35,775,000 in order to effectuate cross
collateralization of the two related Mortgage
Loans.
--------------------------------------------------------------------------------
Jefferson at Providence Place The related Mortgaged Property is encumbered by
Ground Lease (57800) a subordinate loan in the original principal
amount of $1,450,000. The related subordinate
debt holder subordinated its interest pursuant to
a subordination agreement, but did not agree to
stand-still.
--------------------------------------------------------------------------------
Steeplegate Mall (58318) The related mortgage secures a B Note in the
original principal balance of $15,750,000.
--------------------------------------------------------------------------------
Monument IV at Worldgate - A The related mortgage secures a B Note in the
Note (58440) original principal balance of $9,280,000. The
related B Note is expected to be paid in full
within 6 months of closing of the related
Mortgage Loan and the related Borrower has given
notice that it intends to pay the B Note in full
prior to December 31, 2004 As of date of
origination, Mortgagee owned the related B Note.
--------------------------------------------------------------------------------
Legacy at Museum (58583) The related Mortgaged Property is encumbered by
a subordinate loan in the original principal
amount of $3,249,100 to a related redevelopment
agency. The related subordinate debt holder
subordinated its interest pursuant to a
subordination agreement, but did not agree to
stand-still.
--------------------------------------------------------------------------------
REPRESENTATION 24
Waivers and Modification.
-------------------------
--------------------------------------------------------------------------------
Park Laureate Apartments The related Mortgage Loan documents have been
(58564) amended to allow for hyperamortization.
--------------------------------------------------------------------------------
Trinity Centre I (53054) The related Mortgage Loan documents have been
amended to revise the date upon which the
defeasance option may be exercised as well as to
allow for the release of a non-income producing
portion of the Mortgaged Property.
--------------------------------------------------------------------------------
Trinity Centre III (53224) The related Mortgage Loan documents have been
amended to revise the date upon which the
defeasance option may be exercised.
--------------------------------------------------------------------------------
Santa Fe Springs Shopping The related Mortgage Loan documents are being
Center (58490) amended to add master lease provisions and to
create an additional reserve account called the
"GSM Reserve Account" and to adjust the amount of
certain reserves.
--------------------------------------------------------------------------------
Keyport Plaza (58477) The related Mortgage Loan documents are being
amended to change the definition of "Borrower
Principal".
--------------------------------------------------------------------------------
REPRESENTATION 26
Releases of Mortgaged Property.
-------------------------------
--------------------------------------------------------------------------------
Trinity Centre I (53054) Upon the occurrence of the street dedication
required pursuant to proffer 20 of Proffered
Condition Amendment/Final Development Plan
Amendment PCA/FDPA 86-S-071 recorded in Deed Book
10651, at Page 1162 of the Fairfax County
recorder's office, the related Mortgagee shall
release the portion of the related Mortgaged
Property described on Exhibit E to the related
loan agreement from the lien of the related deed
of trust and the subordinate deed of trust, if
applicable.
The related Mortgage Loan documents permit the
release of a non-income producing portion of the
Mortgaged Property upon the satisfaction of
certain conditions including, without limitation,
the delivery of a REMIC opinion.
--------------------------------------------------------------------------------
Steeplegate Mall (58318) Section 2.15 of the related loan agreement
permits certain releases of parcels or outlots
upon the satisfaction of conditions set forth in
such section, which conditions include, without
limitation, the delivery of a REMIC opinion and
evidence that the parcel or outlot being released
is vacant, non-income producing and either (i)
unimproved (or improved only by surface parking
areas or landscaping) or (ii) subject to
Mortgagee's express prior written consent,
improved.
Section 2.16 of the related loan agreement
permits certain lot line adjustments to the
related Mortgaged Property upon the satisfaction
of certain conditions including, without
limitation, the delivery of a REMIC opinion and
evidence that the parcel or outlot being released
is vacant, non-income producing and either (i)
unimproved (or improved only by surface parking
areas or landscaping) or (ii) subject to
Mortgagee's express prior written consent,
improved.
--------------------------------------------------------------------------------
Simon - Upper Valley Mall Provided no event of default under the related
(58294) Mortgage Loan documents shall have occurred and
be continuing, the related Mortgagor without the
consent of the related Mortgagee may make
transfers of immaterial or non-income producing
portions of the related Mortgaged Property. Any
such transfer to a non-governmental entity shall
be subject to the condition that no transfer,
conveyance or other encumbrance shall materially
impair the utility or operation of the related
Mortgaged Property and no transfer, conveyance or
other encumbrance shall materially adversely
affect the value of such Mortgaged Property,
taken as a whole. The first $750,000 of net
proceeds from the transfer of any currently
unimproved, non-income revenue generating
portions of the related Mortgaged Property not
necessary for the operation of such Mortgaged
Property after the payment of the cost of the
related alterations may be retained by Mortgagor,
with the excess to be escrowed with Mortgagee to
secure Mortgagor's payment of principal and
interest on the related note and its other
obligations under the related Mortgage Loan
documents.
The related Mortgage Loan documents permit the
related Mortgagor to substitute a replacement
property subject to the satisfaction of
enumerated conditions that would be acceptable to
a reasonably prudent commercial lender, which
conditions include the consent of the related
Mortgagee to the substitution and the substitute
property.
--------------------------------------------------------------------------------
Barrington at Park Place The related Mortgagor has the right to seek the
(58587) release of a certain non-income producing portion
of the related Mortgaged Property upon the
satisfaction of certain conditions as set forth
in the related Mortgage Loan documents, including
a REMIC opinion.
--------------------------------------------------------------------------------
Xxxx Shopping Center (58524) The related Mortgagor has the right to seek the
release of a certain non-income producing portion
of the related Mortgaged Property that was not
attributed any value in the appraisal upon the
satisfaction of certain conditions as set forth
in the related Mortgage Loan documents.
--------------------------------------------------------------------------------
Legacy at Museum (58583) The related Mortgagor has the right to seek the
release of a 1,145 square foot non-income
producing portion of the related Mortgaged
Property that was not attributed any value in the
appraisal upon the satisfaction of certain
conditions as set forth in the related Mortgage
Loan documents.
--------------------------------------------------------------------------------
Tustin Business Park and The related Mortgagor has the right to seek the
Self-Lock Mini Storage release of a certain non-income producing
(58437) portion of the related Mortgaged Property that
was not attributed any value in the appraisal
upon the satisfaction of certain conditions as
set forth in the related Mortgage Loan documents.
--------------------------------------------------------------------------------
REPRESENTATION 27
Defeasance.
-----------
--------------------------------------------------------------------------------
Simon - Upper Valley Mall In connection with a defeasance, the related
(58294) Mortgagor is required to provide defeasance
collateral in an amount necessary to pay
scheduled principal and interest through the
related lock-out date and the outstanding
principal balance of the related Mortgage Loan
following the expiration of the related lock-out
period.
--------------------------------------------------------------------------------
REPRESENTATION 30
Single-Purpose Entity.
----------------------
--------------------------------------------------------------------------------
Xxxxx Fargo Home Mortgage The original principal balance of the related
Office Building (58452) Mortgage Loan is equal to or greater than
$15,000,000, however the related Mortgagor has no
Tustin Business Park and independent director. Wal-Mart Supercenter -
Self-Lock Mini Storage Douglasville (58414)
(58437)
Wal-Mart Supercenter -
Austell (58415)
Northridge Shopping Center
(58466)
Veritas DGC Headquarters
(58503)
Barrington at Park Place
(58587)
Xxxx 'Bout Arden (58586)
King's Crossing (58563)
--------------------------------------------------------------------------------
Tustin Business Park and The operating agreement of the related Mortgagor
Self-Lock Mini Storage is not executed by such Mortgagor's sole member
(58437) or by such Mortgagor's springing member.
--------------------------------------------------------------------------------
Trinity Centre I (53054) The related Mortgagor has executed a demand note
in the principal amount of $13,465,000 together
with Trinity Centre Three LLC. The demand note is
not excepted from the provisions of the
single-purpose entity covenants of the related
loan agreement.
According to the Second Amended and Restated
Operating Agreement of the related Mortgagor,
such Mortgagor previously owned real property
other than the related Mortgaged Property. The
SPE covenants of the related loan agreement
contain "has not / will not" covenants, but no
exception to the covenants was noted therein. A
non-consolidation opinion was delivered in
connection with the related Mortgage Loan.
--------------------------------------------------------------------------------
Trinity Centre III (53224) Following the release of the proposed release
parcel ("Release Parcel"), the related borrower
will own both the related Mortgaged Property as
well as the Release Parcel, however such Release
Parcel may not be encumbered by such borrower
until it is transferred to another entity. The
foregoing will result in a technical violation of
the SPE covenants contained in the related
Mortgage Loan documents, due to the related
Borrower owning property in addition to the
Mortgaged Property. The foregoing is mitigated by
a host of factors, namely, (i) the Release Parcel
is planned to be transferred to another entity
within approximately 60 days, (ii) there will be
a tax and insurance escrow for the Release
Parcel, (iii) the Release Parcel is encumbered by
a exclusive parking easement that benefits the
related Mortgaged Property (and severely limits
any other uses of the Release Parcel) that may
not be terminated until the Release Parcel is
transferred to another entity (in addition to
other requirements) and (iv) the SPE convents in
the related Mortgage Loan documents limit the
amount of indebtedness that the related borrower
may incur.
--------------------------------------------------------------------------------
Steeplegate Mall (58318) The organizational documents of the related
Mortgagor do not prohibit the amendment of such
documents with respect to the single-purpose
entity requirements without the approval of the
related Mortgagee or rating agencies. They do
prohibit any amendment which would have a
material adverse effect on the related Mortgagee.
--------------------------------------------------------------------------------
Shurgard-West Covina (58431) The special purpose entity covenants contained in
the related Mortgage Loan documents apply only so
long as Shurgard Storage Centers, Inc., fails to
own or control 51% of the related Mortgagor and
such covenants are not found in such Mortgagor's
formation documents.
--------------------------------------------------------------------------------
Colonial Pointe Apartments The special purpose entity covenants contained
(58530) only in the related Mortgage Loan documents and
are not found in such Mortgagor's formation
documents.
--------------------------------------------------------------------------------
Barrington at Park Place The original principal balance of the related
(58587) Mortgage Loan is equal to or greater than
$20,000,000, however the related Mortgagor did
Veritas DGC Headquarters not obtain a non-consolidation opinion.
(58503)
--------------------------------------------------------------------------------
REPRESENTATION 38
Licenses and Permits.
---------------------
-------------------------------------------------------------------------------
One Wall Street (58147) Certain certificates of occupancy were not
obtained or available prior to closing, the
related Mortgagor is to deliver the outstanding
certificates of occupancy post closing. However,
according to a zoning letter, the lack of the
certificates of occupancy does not permit any
enforcement action on the part of the
municipality.
--------------------------------------------------------------------------------
Baylor Medical Plaza (58480) Certain certificates of occupancy were not
received for portions of the related Mortgaged
Property with respect to which certain tenant
improvements and punch list items were ongoing;
however, funds sufficient to pay for such work
were escrowed pursuant to the related escrow
agreement. In addition, the final elevator permit
was not received with respect to the related
Mortgaged Property. The related Mortgagor's
failure to deliver to the related Mortgagee all
certifications, permits, licenses and approvals
required for the legal use, occupancy and
operation of the related Mortgaged Property,
including, without limitation, certificates of
occupancy and elevator permits; however, upon
such Mortgagee's receipt of certificates of
occupancy for 90% or more of the portions of such
Mortgaged Property which could be leased to
tenants and a final elevator permit, the related
Borrower Principal shall be released from such
recourse liability obligation for any act or
omission in violation of the above, which act or
omission occurs subsequent to the date such items
are received.
--------------------------------------------------------------------------------
XxXxxxxx Center (58527) The related Mortgagor is to deliver evidence to
the related Mortgagee post closing that the
related Mortgaged Property meets all parking
requirements. The Mortgagee has obtained a 3.1
zoning endorsement.
--------------------------------------------------------------------------------
REPRESENTATION 41
Non-Recourse Exceptions.
------------------------
--------------------------------------------------------------------------------
Steeplegate Mall (58318) Only the related Mortgagor (and not the related
Borrower Principal) is responsible for the
environmental indemnification obligations set
forth in the related environmental indemnity
agreement.
--------------------------------------------------------------------------------
Rufe Snow Village (58307) No natural person is liable for recourse
carveouts.
Jefferson at Providence
Place Ground Lease (57800)
Monument IV at Worldgate-A
Note (58440)
Veritas DGC Headquarters
(58503)
Xxxxx Fargo Home Mortgage
Office Building (58452)
North Summit Square (58273)
Medical Mutual of Ohio -
Beachwood (58420)
Xxxxxxxx Market Center
(58088)
Park Laureate Apartments
(58564)
Georgia Pacific (58502)
The Shoppes at Golden Acres
(58545)
Southwood Village Shopping
Center (58546)
--------------------------------------------------------------------------------
Steeplegate Mall (58318) GGP/Homart, Inc. (the "Sponsor") executed a
guaranty which provides that Sponsor guarantees
to Mortgagee the prompt and unconditional payment
of the "Guaranteed Principal" (which means
$22,500,000.00 of the principal balance of the
Mortgage Loan, which amount shall be reduced on a
quarterly basis beginning November 1, 2004 based
on the performance of the Facility (as defined in
the related loan agreement) as set forth in the
quarterly financial statements delivered to
mortgagee pursuant to such loan agreement by the
positive amount that is equal to (i) $875,000
multiplied by (ii) the amount that is equal to
(a) the net operating income of the Facility over
the trailing four (4) calendar quarters minus
$7,250,000 divided by (b) $100,000.
--------------------------------------------------------------------------------
Tustin Business Park and There is no guarantor other than the related
Self-Lock Mini Storage Mortgagor for recourse obligations.
(58437)
Trinity Centre I (53054)
Trinity Centre III (53224)
Simon - Upper Valley Mall
(58294)
Shurgard-West Covina (58431)
Barrington at Park Place
(58587)
Post Oak Central (58484)
Colonial Pointe Apartments
(58530)
--------------------------------------------------------------------------------
REPRESENTATION 42
Separate Tax Parcels.
---------------------
--------------------------------------------------------------------------------
Sav-on Santa Fe Springs The related Mortgaged Property is not separately
(58487) assessed for real estate tax purposes. The
related Mortgagor covenanted that the related
Santa Fe Springs Shopping Mortgaged Property shall be a separate tax parcel
Center (58490) upon the next tax assessment and that such
Mortgagor has taken all steps necessary to
effectuate the separation of the tax parcels.
--------------------------------------------------------------------------------
REPRESENTATION 43
Financial Statements.
---------------------
--------------------------------------------------------------------------------
Monument IV at Worldgate - A The related Mortgage Loan amount is in excess of
Note (58440) $20,000,000, however audited financial statements
may only be requested upon the occurrence and
Veritas DGC Headquarters continuation of an event of default.
(58503)
Xxxxx Fargo Home Mortgage
Office Building (58452)
Xxxx 'Bout Arden (58586)
--------------------------------------------------------------------------------
REPRESENTATION 44
Fee/Leasehold Properties.
-------------------------
--------------------------------------------------------------------------------
Xxxx Xxxxx / Montpelier Self The maturity of the related ground lease is not
Storage (58483) 20 years or more following the maturity date of
the related Mortgage Loan.
--------------------------------------------------------------------------------
BACM 2004-6 SECURITIZATION
--------------------------
SCHEDULE IIA
------------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
--------------------------------------------
WITH RESPECT TO THE BRIDGER MORTGAGE LOANS
------------------------------------------
Schedule IIA (8) Mortgage Status; Legal, Valid and Binding Obligations
----------------------------------------------------------------------
With respect to each Bridger Mortgage Loan, because the Assignment of
Leases is a part of the Mortgage, there is no separate assignment of
Assignment of Leases document.
Schedule IIA (14) Insurance
---------------------------
With respect to each Bridger Mortgage Loan, the related Mortgage requires
the Mortgagor to maintain such insurance as the Mortgagee may require, and
thus permits the Mortgagee to require the maintenance of the insurance
described in this section.
With respect to the Walgreens-Brooklyn Park Mortgage Loan (Loan No. 9785),
the tenant (Walgreens) self-insures against damage to, and maintains
general liability insurance covering, the Mortgaged Property.
Schedule IIA (17) Additional Collateral
---------------------------------------
The Loan Documents with respect to the Belmont Park Apartments (Loan No.
10798) and Xxxxxx Dunes MHC (Loan No. 10437) Mortgage Loans permit the
related Mortgagor, after the first anniversary of the securitization of
such Mortgage Loan, to incur subordinate debt or financing from a
financial entity that is not related to or an affiliate of the Mortgagor
provided that certain financial criteria and other requirements are
satisfied to the satisfaction of the Mortgagee in its sole and absolute
discretion.
Schedule IIA (22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest
-----------------------------------------------------------------------
The Gateway Shopping Center Mortgage Loan (Loan No. 9278) provides for
interest-only payments without principal amortization for the first 60
months of the Mortgage Loan's term.
The Belmont Park Apartments Mortgage Loan (Loan No. 10798) provides for
interest-only payments without principal amortization for the first 12
months of the Mortgage Loan's term.
The Parkland Apartments Mortgage Loan (Loan No. 9106) provides for
interest-only payments without principal amortization for the first 24
months of the Mortgage Loan's term.
Schedule IIA (23) Transfers and Subordinate Debt
-------------------------------------------------
The Loan Documents with respect to the Belmont Park Apartments (Loan No.
10798) and Xxxxxx Dunes MHC (Loan No. 10437) Mortgage Loans permit the
related Mortgagor, after the first anniversary of the securitization of
such Mortgage Loan, to incur subordinate debt or financing from a
financial entity that is not related to or an affiliate of the Mortgagor
provided that certain financial criteria and other requirements are
satisfied to the satisfaction of the Mortgagee in its sole and absolute
discretion.
With respect to the Gateway Shopping Center Mortgage Loan (Loan No. 9278),
the Mortgagor's obligation under the related Loan Documents to pay all
reasonable attorneys' fees in connection with a required consent to a
permitted transfer shall not exceed $2,500, and its obligation to pay
related inspection fees shall not exceed $500.
Schedule IIA (30) Single-Purpose Entity
----------------------------------------
With respect to the Gateway Shopping Center Mortgage Loan (Loan No. 9278;
$18.0MM): (A) the Mortgagor's organizational documents (i) do not require
the Mortgagor to prepare separate tax returns and (ii) may be amended with
respect to the Single-Purpose Entity requirements without the approval of
the Mortgagee or the Rating Agencies; and (B) the Mortgagor (a general
partnership) does not have an outside independent director or member.
With respect to the Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxx Xxxx (Xxxx Xx. 00000;
$6.0MM), the Mortgagor's organizational documents do not provide, and the
Mortgagor did not represent or covenant in the Loan Documents, that the
Mortgagor is formed or organized solely for the purpose of owning and
operating the Mortgaged Property.
Schedule IIA (37) Escrow Deposits
---------------------------------
It is anticipated that the primary servicers of the Bridger Mortgage Loans
will retain possession of the escrows, deposits and payments on behalf of
the Depositor, rather than conveying possession thereof to the Depositor
on the Closing Date.
Schedule IIA (41) Non-Recourse Exceptions
-----------------------------------------
Each of the Bridger Mortgage Loans has a carve-out for "fraud or
intentional misrepresentation" rather than "fraud or material
misrepresentation."
Schedule IIA (43) Financial Statements
--------------------------------------
With respect to the following Bridger Mortgage Loans, the related Loan
Documents require the delivery of at least quarterly operating statements
as well as an annual balance sheet of the related Mortgagor (but such Loan
Documents do not specifically require (i) the delivery of an annual
operating statement or (ii) that the annual balance sheet include a
statement of changes in financial position):
Loan No. Loan
-------- -----------------------------------
9278 Gateway Shopping Center
00000 Xxxxxxx Xxx - Xxxxxxxxxx
0000 Xxxx Xxxxxx Professional Building
10798 Belmont Park Apartments
9935 Fairfield Inn Jupiter
0000 Xxxxxxxxx - Xxxxxxxx Xxxx
00000 Xxxxxx Self Storage - Market Street
10371 Xxxxxx Plaza Xxxxxx
00000 Xxxxxx Xxxxx XXX
00000 Bank of America Building - Lynnwood
10441 Xxxx Xxxxxx Xxxxxxxxxx
00000 Xxxxxxx Xxxx Retail Center
00000 Xxxxxxx Xxxxxx
10164 Shops at Prairie Crossing
0000 Xxxxxxxxxx Xxxxx
Schedule IIA (44) Fee/Leasehold Properties
-------------------------------------------
The Belmont Park Apartments Mortgage Loan (Loan No. 10798) is secured by
the Mortgagor's (i) fee simple interest in Parcels 1 and 2 of the
Mortgaged Property and (ii) sub-leasehold interest in Parcel 3 of the
Mortgaged Property pursuant to that certain Sub-Lease dated January 21,
1971 (as amended, modified and supplemented from time to time, the
"Sub-Lease"). The Mortgagor's sub-leasehold interest in Parcel 3 under the
Sub-Lease is subject to that certain Lease dated April 1, 1970 (as
amended, modified and supplemented from time to time, the "Primary Lease",
and together with the Sub-Lease, the "Ground Lease").
(c) The Ground Lease provides that the mortgagee may assign its
right, title and interest in the Ground Lease to any third party so long
as the assignee delivers to the lessor a written assumption agreement
wherein such assignee assumes the obligations of the lessee accruing under
the Ground Lease from and after the date of such assignment.
(i) (A) Insurance proceeds received in connection with a casualty
resulting in a termination of the Ground Lease will be allocated between
the land and the improvements comprising the Mortgaged Property, and the
proceeds so allocated to the improvements will be paid first to the
mortgagee in payment of the Mortgage Loan. Insurance proceeds received in
connection with a casualty that does not result in termination of the
Ground Lease (i.e. partial damage) are not specifically addressed in the
Ground Lease.
(B) Condemnation awards received in connection with a partial
condemnation that does not cause a complete taking or a termination of the
Ground Lease may be retained by the Mortgagor and will be applied by the
mortgagee in accordance with the Loan Documents (in which case the
Mortgagor shall continue to pay ground rent as set forth in the Ground
Lease without any reduction as a result of such partial condemnation). But
condemnation awards received in connection with a condemnation that causes
a complete taking or a termination of the Ground Lease will be allocated
between the land and the improvements comprising the Mortgaged Property,
and the portion of the award allocated to the improvements will be paid
first to the mortgagee in payment of the Mortgage Loan.
(j) The lessor under the Ground Lease agreed that it will not, in
the absence of an uncured default, disturb the possession, interest or
quiet enjoyment of the mortgagee if the mortgagee comes into possession of
or acquire the Mortgagor's leasehold interest in the relevant portion of
the Mortgaged Property.
(k) The Primary Lease does not specifically state that any amendment
or modification thereof without the mortgagee's consent is not binding on
such mortgagee, its successors or assigns. The Sub-Lease states that the
mortgagee will not, if it becomes the lessee under the Sub-Lease, be bound
by any modification of thereof without the mortgagee's consent.
Schedule IIA (45) Fee Simple Interest
--------------------------------------
The Mortgaged Property with respect to the Fairfield Inn Jupiter Mortgage
Loan is subject to a condominium declaration dated July 13, 1987, as amended.
Bridger Mortgage Loans
----------------------
The following Mortgage Loans are the Bridger Mortgage Loans:
Loan No. Loan
--------- ------------------------------------
9278 Gateway Shopping Center
00000 Xxxxxxx Xxx - Xxxxxxxxxx
0000 Xxxx Xxxxxx Professional Building
10798 Belmont Park Apartments
9935 Fairfield Inn Jupiter
0000 Xxxxxxxx Xxxxxxxxxx
0000 Xxxxxxxxx - Xxxxxxxx Xxxx
10416 Xxxxxx Self Storage - Market Street
10371 Xxxxxx Plaza Office
11693 Gateway Apartments
00000 Xxxxxx Xxxxx XXX
00000 Elk Xxxxxxx Apartment
11273 Stoway Mini Storage
00000 Xxxx xx Xxxxxxx Xxxxxxxx - Xxxxxxxx
00000 Xxxx Xxxxxx Xxxxxxxxxx
00000 Xxxxxxx Xxxx Retail Center
00000 Xxxxxxx Xxxxxx
10164 Shops at Prairie Crossing
9822 Sharpstown Plaza
