EXHIBIT 99.2
PMCF/BACM MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of May 1, 2002, between Prudential Mortgage Capital
Funding, LLC, as seller (the "Seller" or "PMCF") 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 has conveyed or will convey
the master servicing rights with regard to the Mortgage Loans (the "Servicing
Rights") to Bank of America, N.A. ("Bank of America"), and Bank of America shall
enter into a certain Sub-Servicing Agreement with Sub-Servicers, all as
contemplated in the Pooling and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans and (ii) certain mortgage loans transferred by Bank of America to
the Purchaser pursuant to a mortgage loan purchase and sale agreement, dated as
of the date hereof between Bank of America and the Purchaser, to a trust (the
"Trust") created pursuant to the Pooling and Servicing Agreement (as defined
below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and/or Xxxxx'x Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of May 1, 2002 (the "Pooling and Servicing Agreement"), among BACM, as
depositor, Bank of America, as master servicer (the "Master Servicer"), Lennar
Partners, Inc., as special servicer (the "Special Servicer") and Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee") and as REMIC
administrator. Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("Banc of America"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and X.X. Xxxxxx Securities Inc. ("JPMorgan")
pursuant to an underwriting agreement, dated as of May 9, 2002 (the
"Underwriting Agreement"). BACM intends to sell the one or more of the remaining
Classes of Certificates (the "Non-Registered Certificates") to Banc of America
and Xxxxxxx Xxxxx, as initial purchasers thereof, pursuant to a certificate
purchase agreement dated May 9, 2002 (the "Certificate Purchase Agreement"),
among Banc of America, BACM and Xxxxxxx Xxxxx. The Registered Certificates are
more fully described in the prospectus dated May 9, 2002 (the "Basic
Prospectus"), and the supplement to the Basic Prospectus dated May 9, 2002 (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 May 9, 2002 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify BACM, Banc of America, Xxxxxxx Xxxxx,
JPMorgan and certain related parties with respect to certain disclosure
regarding the Mortgage Loans and contained in the Prospectus, the Memorandum and
certain other disclosure documents and offering materials relating to the
Certificates, pursuant to an indemnification agreement, dated as of May 1, 2002
(the "Indemnification Agreement"), among the Seller, BACM, Banc of America,
Xxxxxxx Xxxxx, JPMorgan and Bank of America.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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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
shall be payable on May 22, 2002 in immediately available funds.
SECTION 2. Conveyance of the Mortgage Loans.
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(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or, if so directed by the Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"), the Mortgage
File (as defined in Section 2(e)) with respect to each of the Mortgage Loans;
provided that the Purchaser hereby directs the Seller to prepare and the Seller
shall prepare or cause to be prepared (or permit the Purchaser to prepare) with
respect to the Mortgage Loans, the assignments of Mortgage, assignments of
Assignment of Leases and UCC financing statements on Form UCC-2 or UCC-3, as
applicable, from the Seller in favor of the Trustee (in such capacity) or in
blank. The Seller shall at its expense, within 45 days after the Closing Date or
in the case of a Replacement Mortgage Loan, after the related date of
substitution, unless recording/filing information is not available by such time
for assignments solely due to recorder's office delay, in which case such
submission shall be made promptly after such information does become available
from the recorder's office, submit or cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment referred to
in the immediately preceding sentence. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall in each such case promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter shall in each such case, at its own expense,
submit the substitute or corrected documents or cause such to be submitted for
recording or filing, as appropriate.
(d) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or to its designee all of the following items:
(i) asset summaries delivered to the Rating Agencies, originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and originals or copies of all
documents, certificates and opinions in the possession or under the control of
the Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans and that are reasonably
required for the ongoing administration and servicing of the Mortgage Loans
(except to the extent such items represent attorney-client privileged
communications and confidential credit analysis of the client or are to be
retained by a sub-servicer that will continue to act on behalf of the Purchaser
or its designee); and (ii) all Escrow Payments and Reserve Funds in the
possession of the Seller (or under its control) with respect to the Mortgage
Loans. Unless the Purchaser notifies the Seller in writing to the contrary, the
designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the Master Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the documents and instruments specified
below with respect to each Mortgage Loan. Such documents for each Mortgage Loan
comprise a "Mortgage File". 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 following documents:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of Xxxxx
Fargo Bank Minnesota, N.A., as Trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-PB2, without recourse" or in blank, and further
showing a complete, unbroken chain of endorsement from the originator (if
such originator is other than a Mortgage Loan Seller); or alternatively,
if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity from the applicable Mortgage Loan Seller with a
copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv) of this
definition, in each case (unless the particular item has not been returned
from the applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
of this definition, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of recording
indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of
Xxxxx Fargo Bank Minnesota, N.A., as Trustee for the registered holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-PB2, in recordable form (except for any missing
recording information with respect to such Mortgage);
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in favor
of Xxxxx Fargo Bank Minnesota, N.A., as Trustee for the registered holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2002-PB2, in recordable form (except for
any missing recording information with respect to such Assignment of
Leases);
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been modified or
the Mortgage Loan has been assumed, in each case (unless the particular
item has not been returned from the applicable recording office) with
evidence of recording indicated thereon if the instrument being modified
or assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance (the "Title Policy");
(viii)filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the related Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, in connection with such UCC Financing Statements, an original UCC-2
or UCC-3, as appropriate, in favor of Xxxxx Fargo Bank Minnesota, N.A., as
Trustee for the registered holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2002-PB2, in a
form that is complete and suitable for filing or recording, and sufficient
to assign to the Trustee the security interest held by the originator of
the Mortgage Loan or its assignee;
(ix) the original or a copy of any environmental indemnity agreement
relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty, loan
agreement, Ground Lease and/or Ground Lease estoppels relating to such
Mortgage Loan;
(xi) any original documents (including any security agreement(s))
relating to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening assignments
thereof; and
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar agreement
relating to such Mortgage Loan and a copy of any Letter of Credit.
(f) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(e). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File",
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(e) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File. If the Seller cannot or does not so
deliver, or cause to be delivered, as to any Mortgage Loan, the original of any
of the documents and/or instruments referred to in clauses (iv) and (v) of the
definition of "Mortgage File", 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(e) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File. If the Seller cannot so deliver, or
cause to be delivered, as to any Mortgage Loan, the Title Policy solely because
such policy has not yet been issued, the delivery requirements of Section 2(e)
shall be deemed to be satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that the Seller, shall have delivered to the Trustee or a Custodian appointed
thereby, on or before the Closing Date, a binding commitment for title insurance
"marked-up" at the closing of such Mortgage Loan.
(g) The Seller shall in connection with the interest of a related
Mortgagor under a Ground Lease, in each case at its own expense, promptly (and
in any event within 45 days of the Closing Date) notify the related ground
lessor (with a copy of such notice to the Master Servicer) of the transfer of
such Mortgage Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Trustee.
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule or the Mortgage File Checklist, as applicable,
attached to this Agreement as to which a Mortgage Loan is affected, the Seller
shall promptly amend the Mortgage Loan Schedule or the Mortgage File Checklist,
as applicable, and distribute such amended Mortgage Loan Schedule or the
Mortgage File Checklist, as applicable, to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule or Mortgage File Checklist by itself shall not be deemed
to be a cure of a Material Breach.
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
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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 in equity or at law 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 Delaware limited liability company, duly
authorized, validly existing and in good standing under the laws of the
State of Delaware.
(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 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 Breach or Document Defect.
Within 90 days of the earlier of discovery or receipt of written notice by the
Seller that there has been a Material Breach or a Material Document Defect (such
90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects or (ii) repurchase each affected Mortgage Loan (each, a "Defective
Mortgage Loan") at the related Purchase Price in accordance with the terms
hereof and, 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 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 applicable 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 remediating a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
"Resolution Extension Period" shall mean the 90-day period following the end of
the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
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.
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) 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
May 1, 2003, 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) If (i) any Mortgage Loan is required to be repurchased as
provided in Section 4(c) above, (ii) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan that is a part of a Cross-Collateralized
Group and (iii) the applicable Breach or Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any other
Cross-Collateralized Mortgage Loan in such Cross-Collateralized Group (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 other
Cross-Collateralized Mortgage Loan in the Cross-Collateralized Group for
purposes of the above provisions, and the Seller will be required to repurchase
such other Cross-Collateralized Mortgage Loan(s) in the related
Cross-Collateralized Group in accordance with the provisions of this Section 4
unless such other Cross-Collateralized Mortgage Loans satisfy the
Cross-Collateralized Mortgage Loan Repurchase Criteria. In the event that one or
more of such other Cross-Collateralized Mortgage Loans satisfy the
Cross-Collateralized Mortgage Loan Repurchase Criteria, the Seller may elect
either to repurchase only the affected Cross-Collateralized Mortgage Loan as to
which the related Material Breach or Material Document Defect exists or to
repurchase all of the Cross-Collateralized Mortgage Loans in the related
Cross-Collateralized Group. The Seller shall be responsible for the cost of any
appraisal required to be obtained by the Master Servicer to determine if the
Cross-Collateralized Mortgage Loan Repurchase Criteria have been satisfied, so
long as the scope and cost of such appraisal has been approved by the Seller
(such approval not to be unreasonably withheld).
With respect to any Cross-Collateralized Mortgage Loan conveyed hereunder,
to the extent that the Seller repurchases an affected Cross-Collateralized
Mortgage Loan in the manner prescribed in Section 4 while the Trustee continues
to hold any related Cross-Collateralized Mortgage Loans, the Seller and
Purchaser (on behalf of its successors and assigns) agree to forbear from
enforcing any remedies against the other's Primary Collateral, but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans, 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 held by such party, then both parties agree
to forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Mortgage Loans can be modified in a manner
that complies with this Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Mortgage Loans shall be allocated
between such Mortgage Loans in accordance with the Mortgage Loan documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof.
Notwithstanding the foregoing, if (a) the Seller is required to repurchase
a Mortgage Loan pursuant to the terms of this Section 4(e), and (b) such
Mortgage Loan is the Small Crossed Loan, then the applicable Material Document
Defect or Material Breach shall not be deemed to constitute a Material Document
Defect or Material Breach (as the case may be) for the Large Crossed Loan, and
the Seller shall only be required to repurchase or substitute for the Small
Crossed Loan.
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 articles of association 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 Banc of America, Xxxxxxx Xxxxx,
JPMorgan and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
--------------------
The parties hereto shall cooperate with PricewaterhouseCoopers LLP
and Deloitte & Touche LLP in making available all information and taking all
steps reasonably necessary to permit such 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, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte time, on
the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
-----------------
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate substantially in the form of Exhibit
A-1 executed by an authorized officer of the Seller in his or her individual
capacity, and dated the Closing Date, upon which Banc of America, Xxxxxxx Xxxxx,
JPMorgan and BACM may rely, attaching thereto as exhibits the organizational
documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Secretary of State of the State of Delaware, dated not earlier than 30 days
prior to the Closing Date; and
(e) A certificate of the Seller substantially in the form of Exhibit
A-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser, Banc of
America, JPMorgan and Xxxxxxx Xxxxx may rely; and
(f) One or more written opinions of counsel for the Seller in
substantially the form set forth in Exhibit A-3 hereto and 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, dated the
Closing Date and addressed to the Purchaser, Banc of America, JPMorgan, Xxxxxxx
Xxxxx, the Trustees and each Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from Deloitte & Touche LLP,
certified public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed to, and
in form and substance acceptable to the Purchaser, Banc of America, Xxxxxxx
Xxxxx, JPMorgan and Bank of America 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 paid in accordance with the Transaction Management
Agreement.
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., Bank
of America Corporate Center, NC1-007-07-01, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number: (000) 000-0000,
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser; if to the Seller, addressed to Prudential Mortgage Capital
Funding, LLC, 000 Xxxxxxxx Xxxxxx, Xxxxxxx Center 0, 0xx Xxxxx, Xxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxxxxxx Xxxxx, or to such other addresses as may
hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
-----------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO 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. 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.
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.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
LOAN CONTROL TRUST
NUMBER NUMBER ID PROPERTY NAME STREET ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
6104459 P1.1 1.1 New Potomac Portfolio - 4000 38th Street Brentwood
Xxxxxxxx Xxxxxx Xxxxxxxxxx
0000000 P1.2 1.2 New Potomac Portfolio - 1407 0/0 Xxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxxxx Station Apartments
6104459 P1.3 1.3 New Potomac Portfolio - 8800 Xxxxxx Drive Silver Spring
Paddington Square Apartments
6104459 P1.4 1.4 New Potomac Portfolio - 7888 Sheriff Road Landover
Xxxxx Square Apartments
6104459 P1.5 1.5 New Potomac Portfolio - 1400 East University Boulevard Hyattsville
Bedford Station Apartments
6104459 P1.6 1.6 New Potomac Portfolio - 6803 Xxxxx Road Hyattsville
Newbury Square Apartments
6104459 P1.7 1.7 New Potomac Portfolio - 5360 Quincy Place Hyattsville
Edmonton Station Apartments
6104459 P1 1 New Potomac Portfolio (Roll-Up)
6104485 P2.1 8.1 CJB Apartments- Silvertree Apartments 2600-3001 North Silvertree Lane Muncie
6104485 P2.2 8.2 CJB Apartments- Windsong Apartments 0000-0000 Xxxxx Xxxxxxx Xxx Muncie
6104485 P2.3 8.3 CJB Apartments- Autumn Breeze Apartments 0000-0000 Xxxxx Xxxxxxxxx Xxxx Muncie
6104485 P2.4 8.4 CJB Apartments- Sunreach Apartments 1801-1821 West Royale Road Muncie
6104485 P2.5 8.5 CJB Apartments- Everbrook Townhouses 0000-0000 Xxxxx Xxxxxxxxx Xxxx Muncie
6104485 P2.6 8.6 CJB Apartments- Cardinal Villa 1200 West Bethel Ave Muncie
6104485 P2 8 CJB Apartments (Roll-Up)
6104518 P3 12 Columbiana Lakes Apartments 000 Xxxxxxxx Xxxxx Xxxxxxxx
6104457 P4 17 Cypress Gates Apartments 000 Xxxxxx Xxxxxx Xxxxxx
0000000 X0 00 Xxxxxxxxx Apartments 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx
6104440 P6 23 Grand Summit Apartments 601 Friendway Road Greensboro
6104345 P7 34 Green Lake Apartments 00000 XX 00xx Xxxxx Hialeah Gardens
6104350 P8 35 Bentwood Subdivision Xxxxx Xxxxxxxx Avenue, Bentwood Lane, Bowling Green
Burrwood Drive
6104385 P9 00 Xxxxxxxxxxx Xxxxxxxxxx Xxx Xxxxxxx Xxxxxxxxx Xxxxxxx
6104346 P10 43 Sunset on the Lakes Apartments 0000-0000 XX 000xx Xxxxxx Xxxxx
0000000 P11 00 Xxxxxxxxxxxx Xxxxxx Xxxxxx 5715 Richmond Road Williamsburg
6104484 P12 00 Xxx Xxxxx xx Xxxxxx Xxxx 12601-12925 Citrus Park Drive Tampa
6104434 P13 00 Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx
0000000 P14 00 Xxx Xxxxx xx Xxxxxxx Xxxx Center 320 Xxxxxxx Town Center Drive Brandon
6104429 P15 51 Xxxx Center 11211-11245 SE 82nd Avenue Portland
6104427 P16 00 Xxxxxxxxx Xxxx Xxxxx 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx
6104430 P17 00 Xxxxxxxxxx Xxxx Xxxxx 10410 Silverdale Way, NW Silverdale
6103925 P18 00 Xxxxxxxx Xxxxxxx Xxxxx 00 & 55 South Xxxxxx Road Xxxxxxxxx
6104488 P19 60 Walgreens - Salt Lake City 4046 W. 5415 South Xxxxxx
6104489 P20 61 Walgreens - Aurora 00000 X. Xxxxx Xxxxxx Xxxxxx
6104403 P21 00 Xxxxxxx Xxxxx Xxxxx II 520-530 Xx Xxxxx Parkway Xxxxxx
TABLE CONTINUED
AMORT- REMAINING TERM TO
LOAN ZIP MORTGAGE IZATION ORIGINAL CUT-OFF STATED MATURITY STATED MATURITY
NUMBER STATE CODE RATE (%) BASIS BALANCE BALANCE /ARD (MONTHS) DATE/ ARD
-------------------------------------------------------------------------------------------------------------------
6104459 MD 20722
6104459 MD 20783
6104459 MD 20910
6104459 MD 20785
6104459 MD 20783
6104459 MD 20783
6104459 MD 20784
6104459 6.880% ACT/360 39,100,000.00 38,967,596.86 116 01/01/12
6104485 IN 47304
6104485 IN 47304
6104485 IN 47304
6104485 IN 47304
6104485 IN 47304
6104485 IN 47304
6104485 7.110% ACT/360 13,500,000.00 13,480,962.17 118 03/01/12
6104518 SC 29212 7.280% ACT/360 9,150,000.00 9,126,697.99 117 02/01/12
0000000 XX 00000 7.040% ACT/360 7,500,000.00 7,462,874.20 116 01/01/12
6104446 OH 44515 6.910% ACT/360 6,700,000.00 6,673,040.47 115 12/01/11
6104440 NC 27410 6.730% ACT/360 5,100,000.00 5,074,150.63 114 11/01/11
6104345 FL 33016 7.180% ACT/360 2,800,000.00 2,789,364.08 115 12/01/11
6104350 OH 43402 7.170% ACT/360 2,785,000.00 2,762,291.91 113 10/01/11
6104385 LA 70460 7.200% ACT/360 2,200,000.00 2,189,892.76 114 11/01/11
6104346 FL 33193 7.180% ACT/360 1,725,000.00 1,718,447.51 115 12/01/11
6103802 VA 23188 7.690% ACT/360 32,500,000.00 32,288,033.23 114 11/01/11
6104484 FL 33625 6.760% ACT/360 30,000,000.00 29,896,006.84 116 01/01/12
6104434 XX 00000 7.140% ACT/360 19,000,000.00 18,938,859.16 116 01/01/12
6104442 FL 33511 6.790% ACT/360 13,390,000.00 13,334,738.27 115 12/01/11
6104429 OR 97266 7.100% ACT/360 11,775,000.00 11,736,809.40 116 01/01/12
6104427 XX 00000 6.910% ACT/360 7,600,000.00 7,574,414.81 116 01/01/12
6104430 XX 00000 7.100% ACT/360 5,700,000.00 5,681,512.83 116 01/01/12
6103925 XX 00000 7.590% ACT/360 4,400,000.00 4,381,727.73 116 01/01/12
6104488 UT 84118 7.000% ACT/360 4,000,000.00 3,983,813.48 116 01/01/12
6104489 CO 80013 7.340% ACT/360 3,740,000.00 3,726,020.13 117 02/01/12
6104403 XX 00000 7.460% ACT/360 3,600,000.00 3,584,351.35 114 11/01/11
ADMIN. PRIMARY MASTER
LOAN CONTROL TRUST DUE MONTHLY FEE SERVICING SERVICING
NUMBER NUMBER ID PROPERTY NAME DATE PAYMENT RATE FEE RATE FEE
-----------------------------------------------------------------------------------------------------------------------------
6104459 P1.1 1.1 New Potomac Portfolio -
Finchley Square Apartments
6104459 P1.2 1.2 New Potomac Portfolio -
Victoria Station Apartments
6104459 P1.3 1.3 New Potomac Portfolio -
Paddington Square Apartments
6104459 P1.4 1.4 New Potomac Portfolio -
Xxxxx Square Apartments
6104459 P1.5 1.5 New Potomac Portfolio -
Bedford Station Apartments
6104459 P1.6 1.6 New Potomac Portfolio -
Newbury Square Apartments
6104459 P1.7 1.7 New Potomac Portfolio -
Edmonton Station Apartments
6104459 P1 1 New Potomac Portfolio (Roll-Up) 1st $256,989.80 0.09170% 0.06500% 0.09000%
6104485 P2.1 8.1 CJB Apartments- Silvertree Apartments
6104485 P2.2 8.2 CJB Apartments- Windsong Apartments
6104485 P2.3 8.3 CJB Apartments- Autumn Breeze Apartments
6104485 P2.4 8.4 CJB Apartments- Sunreach Apartments
6104485 P2.5 8.5 CJB Apartments- Everbrook Townhouses
6104485 P2.6 8.6 CJB Xxxxxxxxxx- Xxxxxxxx Xxxxx
0000000 X0 0 XXX Xxxxxxxxxx (Xxxx-Xx) 0xx $ 90,815.36 0.05170% 0.02500% 0.05000%
6104518 P3 00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx 0xx $ 62,605.42 0.10170% 0.07500% 0.10000%
6104457 P4 00 Xxxxxxx Xxxxx Xxxxxxxxxx 0xx $ 53,199.97 0.05170% 0.02500% 0.05000%
6104446 P5 00 Xxxxxxxxx Xxxxxxxxxx 0xx $ 44,171.03 0.10170% 0.07500% 0.10000%
6104440 P6 00 Xxxxx Xxxxxx Xxxxxxxxxx 0xx $ 33,010.73 0.05170% 0.02500% 0.05000%
6104345 P7 00 Xxxxx Xxxx Xxxxxxxxxx 0xx $ 18,968.18 0.05170% 0.02500% 0.05000%
6104350 P8 35 Bentwood Subdivision 1st $ 19,986.85 0.10170% 0.07500% 0.10000%
6104385 P9 00 Xxxxxxxxxxx Xxxxxxxxxx 0xx $ 14,933.34 0.05170% 0.02500% 0.05000%
6104346 P10 43 Sunset on the Lakes Apartments 1st $ 11,685.75 0.05170% 0.02500% 0.05000%
6103802 P11 45 Williamsburg Outlet Center 1st $244,203.00 0.05170% 0.02500% 0.05000%
6104484 P12 00 Xxx Xxxxx xx Xxxxxx Xxxx 0xx $194,778.89 0.05170% 0.02500% 0.05000%
6104434 P13 00 Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx 0xx $128,198.94 0.05170% 0.02500% 0.05000%
6104442 P14 00 Xxx Xxxxx xx Xxxxxxx Xxxx Xxxxxx 0xx $ 87,203.61 0.05170% 0.02500% 0.05000%
6104429 P15 51 Xxxx Center 1st $ 79,131.76 0.05170% 0.02500% 0.05000%
6104427 P16 00 Xxxxxxxxx Xxxx Xxxxx 0xx $ 50,104.45 0.05170% 0.02500% 0.05000%
6104430 P17 00 Xxxxxxxxxx Xxxx Xxxxx 0xx $ 38,305.82 0.05170% 0.02500% 0.05000%
6103925 P18 00 Xxxxxxxx Xxxxxxx Xxxxx 0xx $ 32,354.82 0.10170% 0.07500% 0.10000%
6104488 P19 00 Xxxxxxxxx - Xxxx Xxxx Xxxx 0xx $ 27,344.62 0.10170% 0.07500% 0.10000%
6104489 P20 61 Walgreens - Aurora 1st $ 27,250.21 0.10170% 0.07500% 0.10000%
6104403 P21 00 Xxxxxxx Xxxxx Xxxxx XX 0xx $ 25,073.19 0.05170% 0.02500% 0.05000%
TABLE CONTINUED
ORIGINAL
LOAN OWNERSHIP AMORTIZATION XXX XXXXX
NUMBER INTEREST CROSSED (MONTHS) LOAN PERIOD
------------------------------------------------------------------------
6104459 Fee Simple
6104459 Fee Simple
6104459 Fee Simple
6104459 Fee Simple
6104459 Fee Simple
6104459 Fee Simple
6104459 Fee Simple
6104459 No 360 No 5
6104485 Fee Simple
6104485 Fee Simple
6104485 Fee Simple
6104485 Fee Simple
6104485 Fee Simple
6104485 Fee Simple
6104485 No 360 No 5
6104518 Fee Simple No 360 No 5
6104457 Fee Simple No 300 No 5
6104446 Fee Simple No 360 No 5
6104440 Fee Simple No 360 No 5
6104345 Fee Simple No 360 No 5
6104350 Fee Simple No 300 No 5
6104385 Fee Simple No 360 No 5
6104346 Fee Simple No 360 No 5
6103802 Fee Simple No 300 No 5
6104484 Fee Simple No 360 Yes 7
6104434 Fee Simple No 360 No 5
6104442 Fee Simple No 360 Yes 7
6104429 Fee Simple No 360 No 5
6104427 Fee Simple No 360 No 5
6104430 Fee Simple No 360 No 5
6103925 Fee Simple No 312 No 5
6104488 Fee Simple No 330 Yes 5
6104489 Fee Simple No 300 Yes 5
6104403 Fee Simple No 360 Yes 7
LOAN CONTROL TRUST
NUMBER NUMBER ID PROPERTY NAME STREET ADDRESS CITY
-----------------------------------------------------------------------------------------------------------------------------------
6104374 P22 65 Walgreens-Germantown 0000 Xxxx Xxxxx Xxxxxxx Germantown
6104441 P23 66 Wolfchase Bed Bath, & Beyond 2810 North Germantown Parkway Memphis
6104384 P24 71 CVS Pharmacy - Xxxxxxx 308 Highway 441 South Xxxxxxx
6104433 P25 72 Cobblewood Shops 0000 Xxxxxx Xxxxxx Xxxxxx Xxxx
6104381 P26 77 Commerce Park IV and V 23240 and 23250 Chagrin Boulevard Beachwood
6104111 P27 79 00 Xxxxxx Xxxx 16 Xxxxxx Road Farmington
6104383 P28 81 00 Xxxxx Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
6104478 P29 84 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx
0000000 P30 90 000 Xxxxx Xxxxxx Xxxx 200 Docks Corner Road South Brunswick
6104477 P31.1 92.1 Rio Grande Industrial Center 1900 Xxxxx Xxxxxxxx Blvd./ Brownsville
600-800 Elca Lane
6104477 P31.2 92.2 Rio Grande Distribution Center A&B 000-000 Xxxxx Xxxxxx Xxxxxxxxxxx
0000000 P31.3 92.3 Rio Grande Distribution Center C 0000 XX 000 Xxxxxxxxxxx
6104477 P31.4 92.4 Rio Grande Distribution Center D 1302 South 28th Street Edinburg
6104477 P31 00 Xxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx (Xxxx-Xx)
0000000 P32 93 Rio Grande Industrial Center #4 1900 C Xxxxx Xxxxxxxx Boulevard Brownsville
6104470 P33 00 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxxxxx Highway Jacksonville
6104439 P34 00 Xxxxxxxxx Xxxxxxxx Xxxx 3700, 3710, 3750, 3760 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx
0000000 X00 00 Xxxxxxxxxx Distribution Center 0000 Xxxxxxx Xxx Xxxxxxxxxxxx
0000000 P36 000 XXX Xxxxxxxx Xxxx 0000 Xxx Xxxx Xxxxx Xxxxxx Xxxxxxxxx
0000000 P37 000 Xxxxxxxxxx Xxxxxxxxxx Xxxx 000-000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxx
6104436 P38 000 Xxxxx Xxxxx 00000 Xxxxx Xxxx Pflugerville
6104370 P39 000 Xxxxxx Xxxxxx 1300 Penile Road Louisville
6104369 P40 000 Xxxxxxxxx Xxxxxx 0000-0000 Xxxxxx Xxxxx Lane Middletown
6104368 P41 111 Heartland Pointe 113 Sioux Trail Elsmere
6104480 P42 000 Xxxx Xxxxxx Xxxx 000 Xxxxx Xxxx,000, 923-985,989,999 Xxxxxx City
X.Xxxxxxxxx Xxxx.,0000 Metro Center
Blvd.
6104409 P43 116 Storage USA - Wilton 000 Xxxxxxx Xxxx Xxxxxx
6104365 P44 118 EZ Storage-Pasadena 8195 Jumpers Hole Road Pasadena
TABLE CONTINUED
AMORT- REMAINING TERM TO
LOAN ZIP MORTGAGE IZATION ORIGINAL CUT-OFF STATED MATURITY STATED MATURITY
NUMBER STATE CODE RATE (%) BASIS BALANCE BALANCE /ARD (MONTHS) DATE/ ARD
-------------------------------------------------------------------------------------------------------------------
6104374 TN 38138 7.430% ACT/360 3,150,000.00 3,134,433.30 113 10/01/11
6104441 TN 38018 7.280% ACT/360 3,025,000.00 3,004,070.17 79 12/01/08
6104384 GA 30525 7.410% ACT/360 1,462,000.00 1,446,040.77 114 11/01/11
6104433 OH 45240 7.890% ACT/360 1,395,000.00 1,387,748.56 115 12/01/11
6104381 OH 44122 7.300% ACT/360 17,100,000.00 17,012,984.00 113 10/01/11
6104111 CT 06032 7.850% ACT/360 11,700,000.00 11,577,304.95 104 01/01/11
6104383 MD 21201 7.130% ACT/360 8,375,000.00 8,347,996.67 116 01/01/12
6104478 XX 00000 7.330% ACT/360 6,000,000.00 5,981,403.18 116 01/01/12
6104395 NJ 08810 6.980% ACT/360 37,000,000.00 36,640,623.04 55 12/01/06
6104477 TX 78521
6104477 TX 78521
6104477 TX 78521
6104477 TX 78539
6104477 7.540% ACT/360 15,709,000.00 15,662,853.52 116 01/01/12
6104526 TX 78521 7.540% ACT/360 1,783,000.00 1,777,762.30 116 01/01/12
6104470 FL 32256 6.910% ACT/360 13,500,000.00 13,444,497.95 128 01/01/13
0000000 XX 00000 7.050% ACT/360 7,500,000.00 7,455,032.94 175 12/01/16
6104469 FL 32256 6.910% ACT/360 4,800,000.00 4,783,840.91 128 01/01/13
6104373 TX 76051 7.350% ACT/360 1,920,000.00 1,910,338.95 113 10/01/11
0000000 XX 00000 7.100% ACT/360 1,900,000.00 1,864,195.85 114 11/01/11
6104436 TX 78660 7.140% ACT/360 11,900,000.00 11,861,706.53 116 01/01/12
6104370 XX 00000 7.020% ACT/360 4,530,000.00 4,492,104.02 113 10/01/11
6104369 OH 45044 7.020% ACT/360 4,445,000.00 4,407,815.11 113 10/01/11
6104368 XX 00000 7.020% ACT/360 3,225,000.00 3,198,021.09 113 10/01/11
0000000 XX 00000 6.500% ACT/360 45,500,000.00 45,300,487.34 115 12/01/11
6104409 CT 06897 7.000% ACT/360 7,800,000.00 7,752,842.68 115 12/01/11
6104365 MD 21122 7.530% ACT/360 5,100,000.00 5,060,928.61 113 10/01/11
442,876,638.25
==============
ADMIN. PRIMARY MASTER
LOAN CONTROL TRUST DUE MONTHLY FEE SERVICING SERVICING
NUMBER NUMBER ID PROPERTY NAME DATE PAYMENT RATE FEE RATE FEE
----------------------------------------------------------------------------------------------------------------------------
6104374 P22 65 Walgreens-Germantown 1st $21,874.47 0.10170% 0.07500% 0.10000%
6104441 P23 66 Wolfchase Bed Bath, & Beyond 1st $22,610.91 0.05170% 0.02500% 0.05000%
6104384 P24 71 CVS Pharmacy - Xxxxxxx 1st $11,697.45 0.10170% 0.07500% 0.10000%
6104433 P25 72 Cobblewood Shops 1st $10,665.38 0.10170% 0.07500% 0.10000%
6104381 P26 77 Commerce Park IV and V 1st $117,232.63 0.10170% 0.07500% 0.10000%
6104111 P27 00 00 Xxxxxx Xxxx 0xx $84,630.18 0.08170% 0.05500% 0.08000%
6104383 P28 00 00 Xxxxx Xxxxxxx Xxxxxx 0xx $56,452.19 0.05170% 0.02500% 0.05000%
6104478 P29 84 000 Xxxx 00xx Xxxxxx 1st $41,256.65 0.05170% 0.02500% 0.05000%
6104395 P30 90 000 Xxxxx Xxxxxx Xxxx 1st $261,036.43 0.05170% 0.02500% 0.05000%
6104477 P31.1 92.1 Rio Grande Industrial Center
6104477 P31.2 92.2 Rio Grande Distribution Center A&B
6104477 P31.3 92.3 Rio Grande Distribution Center C
6104477 P31.4 92.4 Rio Grande Distribution Center D
6104477 P31 00 Xxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx (Xxxx-Xx) 0xx $110,296.18 0.10170% 0.07500% 0.10000%
6104526 P32 00 Xxx Xxxxxx Xxxxxxxxxx Xxxxxx #0 1st $12,518.82 0.10170% 0.07500% 0.10000%
6104470 P33 00 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0xx $91,493.39 0.05170% 0.02500% 0.05000%
6104439 P34 00 Xxxxxxxxx Xxxxxxxx Xxxx 0xx $53,247.90 0.10170% 0.07500% 0.10000%
6104469 P35 99 Interstate Distribution Center 1st $31,644.92 0.05170% 0.02500% 0.05000%
6104373 P36 000 XXX Xxxxxxxx Xxxx 0xx $13,228.26 0.05170% 0.02500% 0.05000%
6104380 P37 000 Xxxxxxxxxx Xxxxxxxxxx Xxxx 0xx $17,184.14 0.05170% 0.02500% 0.05000%
6104436 P38 000 Xxxxx Xxxxx 1st $80,293.02 0.05170% 0.02500% 0.05000%
6104370 P39 000 Xxxxxx Xxxxxx 0xx $32,074.92 0.10170% 0.07500% 0.10000%
6104369 P40 000 Xxxxxxxxx Xxxxxx 0xx $31,473.07 0.10170% 0.07500% 0.10000%
6104368 P41 000 Xxxxxxxxx Xxxxxx 0xx $22,834.79 0.10170% 0.07500% 0.10000%
6104480 P42 000 Xxxx Xxxxxx Xxxx 0xx $287,590.95 0.05170% 0.02500% 0.05000%
6104409 P43 116 Storage USA - Wilton 1st $55,128.78 0.05170% 0.02500% 0.05000%
6104365 P44 118 EZ Storage-Pasadena 1st $37,788.13 0.05170% 0.02500% 0.05000%
TABLE CONTINUED
ORIGINAL
LOAN OWNERSHIP AMORTIZATION XXX XXXXX
NUMBER INTEREST CROSSED (MONTHS) LOAN PERIOD
-----------------------------------------------------------------
6104374 Fee Simple No 360 Yes 5
6104441 Fee Simple No 276 Yes 7
6104384 Fee Simple No 240 Yes 5
6104433 Fee Simple No 300 No 5
6104381 Fee Simple No 360 No 5
6104111 Fee Simple No 360 No 10
6104383 Fee Simple No 360 No 5
6104478 Fee Simple No 360 No 5
6104395 Fee Simple No 300 No 5
6104477 Fee Simple/
Leasehold
6104477 Fee Simple
6104477 Fee Simple
6104477 Fee Simple
6104477 Yes (BACM 360 No 5
02-PB2-S)
6104526 Fee Simple Yes (BACM 360 No 5
02-PB2-S)
6104470 Fee Simple No 330 No 5
6104439 Fee Simple No 300 No 5
6104469 Fee Simple No 360 No 5
6104373 Fee Simple No 360 No 5
6104380 Fee Simple No 180 No 5
6104436 Fee Simple No 360 No 5
6104370 Fee Simple No 300 No 5
6104369 Fee Simple No 300 No 5
6104368 Fee Simple No 300 No 5
6104480 Fee Simple No 360 Yes 5
6104409 Fee Simple No 300 No 5
6104365 Fee Simple No 300 No 5
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in May 2002.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances.
Subject to the completion of all missing information (including, without
limitation, the names of assignees and endorsees and missing recording
information) in all instruments of transfer or assignment and endorsements, and
the completion of all recording and filing contemplated hereby and by the
Pooling and Servicing Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in May 2002, without giving effect to any applicable grace period,
nor was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in May 2002.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. To the Seller's knowledge, such Title Policy
contains no exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), (a) access to a public road, and (b) that the area shown on
the survey, if any, reviewed or prepared in connection with the origination of
the related Mortgage Loan is the same as the property legally described in the
related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), has been
delivered to the Purchaser; and (c) either: (i) no such Environmental Report, if
any, provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 10% of
the outstanding principal balance of the related Mortgage Loan, (E) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (F) the related Borrower or another responsible
party is currently taking such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable governmental
regulatory authority, (G) the related Mortgaged Property is insured under a
policy of insurance, subject to certain per occurrence and aggregate limits and
a deductible, against certain losses arising from such circumstances and
conditions or (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's knowledge, there are no significant
or material circumstances or conditions with respect to such Mortgaged Property
not revealed in any such Environmental Report, where obtained, or in any
Borrower questionnaire delivered to Seller at the issue of any related
environmental insurance policy, if applicable, that render such Mortgaged
Property in material violation of any applicable environmental laws. The
Mortgage or another loan document for each Mortgage Loan encumbering the
Mortgaged Property requires the related Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset or rescission available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements that would deny the mortgagee
the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least six (6) months (or a
specified dollar amount which, in the reasonable judgement of the Seller, will
cover no less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below).
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term which extends not
less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage
Loan and has extension options that are exercisable by the lender
upon its taking possession of the Borrower's leasehold interest and
that, if exercised, would cause the term of such Ground Lease to
extend not less than twenty (20) years beyond the Stated Maturity
Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving
the related Borrower unless the mortgagee under such Mortgage Loan
fails to cure a default of the lessee under such Ground Lease
following notice thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury regulation
section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge and 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.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. To the Seller's knowledge, as of the date
of origination of each Mortgage Loan and based on any of: (a) a letter from
governmental authorities, (b) a legal opinion, (c) an endorsement to the related
Title Policy, (d) a representation of the related borrower at the time of
origination of such Mortgage Loan, (e) a zoning report from a zoning consultant,
or (f) other due diligence that the originator of the Mortgage Loan customarily
performs in the origination of comparable mortgage loans, the related Borrower
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated or such material licenses, permits and franchises have
otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (a) the satisfaction of certain legal and underwriting requirements or (b)
the payment of a release price and prepayment consideration in connection
therewith; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (a) no earlier than two
years following the Closing Date and (b) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. To the Seller's knowledge, based solely
upon inquiry of its servicer, there exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit C.
34. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. ARD Loans. As of the Closing Date, 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 it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
39. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy, then the Seller:
(a) 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
(b) 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 to the extent that 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.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulation Section 1.860G-1(b)(2).
41. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
42. Servicing Rights. Except as otherwise contemplated in this
Agreement, no Person has been granted or conveyed the right to service any
Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
44. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
46. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
47. Servicing and Collection. The servicing of the Mortgage Loans by
the Seller or a sub-servicer retained by the Seller is legal, proper and prudent
in all material respects.
48. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Set forth below are the exceptions to the Representations and
Warranties provided in Schedule II of that certain Mortgage Loan Purchase
Agreement dated as of May 1, 2002, by and between Prudential Mortgage Capital
Funding, LLC and Banc of America Commercial Mortgage, Inc.
REPRESENTATION AND WARRANTY NO. 14
(INSURANCE)
Loan No. Exception
-------- ---------
6104488 - Walgreens/Salt Lake City Do not require the borrowers to carry
6104374 - Walgreens/Germantown business interruption or rent loss
6104489 - Walgreens/Aurora insurance because in each case,
Walgreens effectively self-insures
such loss through its lease
obligations.
6103802 - Williamsburg Outlet Center Permits the borrower's hazard insurance
policy to contain a terrorism insurance
exclusion.
6104395 - 000 Xxxxx Xxxxxx Xxxx Permits the borrower's hazard insurance
policy to provide a limited amount of
terrorism coverage (currently
$250,000).
6104480 - Town Center East Is secured by certain land, and
assignments of ground leases affecting
the land. The borrower is only required
to carry comprehensive general
liability insurance.
6104370 - Ashley Pointe A portion of the Mortgaged Property is
located in a flood hazard area. Flood
insurance was required only with
respect to business interruption and
rental loss coverage since no material
improvements owned by borrower were
located in the flood hazard area, and
the insurance on the potentially
affected manufactured homes is the
responsibility of the individual
tenants.
REPRESENTATION AND WARRANTY NO. 15
(TAXES AND ASSESSMENTS)
Loan No. Exception
-------- ---------
6104446 - Hillbrook Apartments At closing, the borrower was involved
in a tax contest and funds in an amount
sufficient to cover the delinquent
taxes and penalties were escrowed. The
borrower has subsequently entered into
an agreement with Mahoning County that
provides that agreed-upon taxes are to
be paid in five semi-annual
installments of $3,623, and the escrow
has been released.
REPRESENTATION AND XXXXXXXX XX. 00
(XXXXXXXXX XXXXXX ONLY)
Loan No. Exception
-------- ---------
6104477 - Rio Grande Industrial A small portion of one of the four
Portfolio properties securing this
loan, which contains one of multiple
driveways providing access to the
property, is subject to a ground lease
which fails to satisfy a number of the
specific provisions identified in
Paragraph 18.
REPRESENTATION AND WARRANTY NO. 28
(RELEASES OF MORTGAGED PROPERTIES)
Loan No. Exception
-------- ---------
6104484 - The Plaza at Citrus Park The borrower is permitted to obtain
6104409 - Storage USA-Wilton the release of a vacant outparcel with
6104111 - 00 Xxxxxx Xxxx no monetary payment, upon satisfaction
of other specified conditions.
REPRESENTATION AND WARRANTY NO. 43
(SERVICING RIGHTS)
Loan No. Exception
-------- ---------
Seller's affiliate, Prudential Asset
Resources, Inc. ("PAR") has been
granted the right to primary service
all of the PMCF Loans. In addition, for
each of the Mortgage Loans identified
on the attached Exhibit A, a
subservicer (generally, the mortgage
broker associated with the related
Mortgage Loan) has been granted the
right to receive certain payments. The
subservicers' rights to receive such
payments are only terminable under
limited circumstances.
REPRESENTATION AND WARRANTY NO. 47
(BORROWER ORGANIZATION)
Loan No. Exception
-------- ---------
6104470 - Interstate South Commerce The borrowers are trusts formed under
6104469 - Interstate Distribution Center the laws of Canada.
Center
