EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of December 29, 2005, between Bank of America, N.A., as
seller (the "Seller" or "Bank of America" and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by Barclays Capital Real
Estate Inc. ("BCREI") to the Purchaser pursuant to a mortgage loan purchase and
sale agreement, dated as of the date hereof between BCREI and the Purchaser, and
(iii) certain mortgage loans transferred by Bear Xxxxxxx Commercial Mortgage,
Inc. ("BSCMI") to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between BSCMI and the Purchaser, to a
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement (as
defined below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and/or Xxxxx'x Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2005 (the "Pooling and Servicing Agreement"), among
BACM, as depositor, Bank of America, N.A., as master servicer (the "Master
Servicer"), LNR Partners, Inc., as special servicer (the "Special Servicer"),
and LaSalle Bank National Association as trustee (in such capacity, the
"Trustee") and as REMIC administrator. Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("Banc of America"), Bear, Xxxxxxx & Co Inc. ("BSCI"), Barclays
Capital Inc. ("BCI"), Deutsche Bank Securities Inc. ("Deutsche Bank") and Xxxxxx
Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") (collectively, the "Underwriters")
pursuant to an underwriting agreement, dated as of December 16, 2005 (the
"Underwriting Agreement"). BACM intends to sell certain of the remaining classes
of Certificates (the "Non-Registered Certificates") to Banc of America and BSCI
and BCI, as initial purchasers (together the "Initial Purchasers"), pursuant to
a certificate purchase agreement dated as of December 16, 2005 (the "Certificate
Purchase Agreement"), among BACM, Banc of America, BSCI and BCI. The Registered
Certificates are more fully described in the prospectus dated September 30, 2005
(the "Basic Prospectus"), and the supplement to the Basic Prospectus dated
December 16, 2005 (the "Prospectus Supplement"; and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented at any
time hereafter. The Non-Registered Certificates are more fully described in the
private placement memoranda, dated December 16, 2005 (the "Memoranda"), as they
may be amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loans and contained in the Prospectus, the Memoranda and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of December 16, 2005 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be $1,959,457,330, which amount includes interest accrued on the Mortgage
Loans on or after the Cut-off Date and which amount shall be payable on or about
December 29, 2005 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or, if so directed by the Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"), the Mortgage
File with respect to each of the Mortgage Loans; provided that the Purchaser
hereby directs the Seller to prepare and the Seller shall prepare or cause to be
prepared (or permit the Purchaser to prepare) with respect to the Mortgage
Loans, the assignments of Mortgage, assignments of Assignment of Leases and UCC
financing statements on Form UCC-2 or UCC-3, as applicable, from the Seller in
favor of the Trustee (in such capacity) or in blank. The Seller shall at its
expense, within 45 days after the Closing Date or, in the case of a Replacement
Mortgage Loan, after the related date of substitution, unless recording/filing
information is not available by such time for assignments solely due to
recorder's office delay, in which case such submission shall be made promptly
after such information does become available from the recorder's office, submit
or cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment referred to in the immediately preceding
sentence, unless recording/filing information is not available by such time for
assignments solely due to recorder's office delay, in which case such submission
shall be made promptly after such information does become available from the
recorder's office. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall in each such case promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and thereafter shall in each such case, at its own expense, submit the
substitute or corrected documents or cause such to be submitted for recording or
filing, as appropriate.
(d) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or to its designee all of the following items:
(i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of the Seller that relate to the Mortgage
Loans and originals or copies of all documents, certificates, letters of credit,
environmental insurance policies and related endorsements, and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans (except to the extent such items represent
attorney-client privileged communications and confidential credit analysis of
the client or are to be retained by a sub-servicer that will continue to act on
behalf of the Purchaser or its designee); and (ii) all Escrow Payments and
Reserve Funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans. Unless the Purchaser notifies the Seller in
writing to the contrary, the designated recipient of the items described in
clauses (i) and (ii) of the preceding sentence shall be the Master Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(f) If the Seller is unable to deliver or cause the delivery of any
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirements of Section 2(e). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, the delivery
requirements of Section 2(e) shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File. If the Seller cannot or does not so deliver, or cause to
be delivered, as to any Mortgage Loan, the original of any of the documents
and/or instruments referred to in clauses (iv) and (v) of the definition of
"Mortgage File" in the Pooling and Servicing Agreement, because such document or
instrument has been delivered for recording or filing, as the case may be, the
delivery requirements of Section 2(e) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan.
(g) [Reserved].
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the Seller's knowledge, threatened
against the Seller which if determined adversely to the Seller would
prohibit the Seller from entering into this Agreement, or in the Seller's
good faith and reasonable judgment, would be likely to materially and
adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and the terms of the Pooling and Servicing
Agreement; provided that if the Seller certifies in writing to the Purchaser (i)
that any such Material Breach or Material Document Defect, as the case may be,
does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (except in the case of the XX Xxxx Passu Note A-1
Component Mortgage Loan) (but, in any event, no later than such repurchase would
have to have been completed), (i) replace such Defective Mortgage Loan with one
or more substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (ii) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan
basis. The Seller shall have no obligation to monitor the Mortgage Loans
regarding the existence of a Material Breach or Material Document Defect, but if
the Seller discovers a Material Breach or Material Document Defect with respect
to a Mortgage Loan, it will notify the Purchaser. For purposes of remediating a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
"Resolution Extension Period" shall mean the 90-day period following the end of
the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan or Mortgage Loan
in the manner described above unless, in the case of a Material Breach or
Material Document Defect, both of the following conditions would be satisfied if
the Seller were to repurchase or substitute for only the affected
Crossed-Collateralized Mortgage Loans or affected Mortgaged Properties as to
which a Material Breach or Material Document Defect had occurred without regard
to this paragraph: (i) the debt service coverage ratio for any remaining
Cross-Collateralized Mortgage Loans or Mortgaged Properties for the four
calendar quarters immediately preceding the repurchase or substitution is not
less than the greater of (a) the debt service coverage ratio immediately prior
to the repurchase, and (b) 1.25x and (ii) the loan-to-value ratio for any
remaining Crossed-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, and (b) 75%. In the event that both of the conditions set forth in
the preceding sentence would be satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the related Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans or Mortgaged Property, the Seller
and the Purchaser agree to uncross the repurchased Cross-Collateralized Mortgage
Loan or affected property; provided the Purchaser has received a tax opinion
that uncrossing the repurchased Cross-Collateralized Mortgage Loan or Mortgaged
Property will not adversely affect the status of any of REMIC I, REMIC II or the
Component Mortgage Loan REMIC as a REMIC under the Code.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
The Seller's obligation to cure any Material Breach or Material Document
Defect or repurchase or substitute any affected Mortgage Loan or Mortgaged
Property pursuant to this Section 4(c) constitute the sole remedies available to
the Purchaser in connection with a breach of any of the Seller's representations
and warranties contained in Section 4(b) and it is acknowledged and agreed that
those representations and warranties are being made for risk allocation purposes
only.
It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to this Section 4(c) that the Purchaser
shall have executed and delivered such instruments of transfer or assignment
then presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto ), to the extent that such
ownership interest was transferred to the Purchaser hereunder.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) [Reserved];
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller, each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers, and each
Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memoranda
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memoranda stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx, Esq., Assistant
General Counsel, at Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
20th Floor, NC1-007-20-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to Xxxxx X.
XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202) or to such other addresses as may
hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN
TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW, PURSUANT TO WHICH
THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK AS THE
GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN
NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
BANK OF AMERICA, N.A.
By:/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By:/s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Number Loan Number Loan Seller Property Name
--------------- ----------- --------------- ---------------------------------------------------------
1 59147 Bank of America 000 Xxxx Xxxxxx
0 00000 Xxxx xx Xxxxxxx KinderCare Portfolio
4 58988 Bank of America Summit at Warner Center
5 58791 Bank of America Xxxxxxx Plaza
6 59416 Bank of America Xxxxxxx Xxxx Xxxx
0 00000 Xxxx xx Xxxxxxx Omni Hotel-San Diego
8 59472 Bank of America ODS Tower
9 59445 Bank of America 0000 X Xxxxxx
00 00000 Xxxx xx Xxxxxxx River Ranch Apartments
11 58946 Bank of America Xxx Xxx Xxxxxxx Xxxx
00 00000 Xxxx xx Xxxxxxx Scottsdale Fiesta
13 59459 Bank of America Loop Central
14 59473 Bank of America Crescent Center
16 59377 Bank of America Huntington by the Sea
19 59374 Bank of America Xxxxxxxxx Xxxx
00 00000 Xxxx xx Xxxxxxx 000 Xxxx 00xx Xxxxxx Apartments
22 57834 Bank of America Park View Xxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxx xx Xxxxxxx Physicians Park
24 57837 Bank of America Atrium
25 57887 Bank of America Building B
Subtotal Crossed Loans
27 57467 Bank of America City Center
28 14848 Bridger Washington State Attorney General's Office Xxxx
00 00000 Xxxx xx Xxxxxxx Elk Ridge Apartments
30 59354 Bank of America California Culinary Office
31 59180 Bank of America Spicetree Apartments
33 59411 Bank of America Old Mill Corporate Center I
34 15877 Xxxxxxx Xxxxxx Technology Park
35 16310 Bridger Summit Xxxxx Apartments
37 59086 Bank of America Xxxxxxxx Xxxx Apartments
38 16084 Bridger The Waterford Apartments
41 59022 Xxxx xx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
00 00000 Bank of America 3700 Buffalo Speedway
43 59284 Bank of America Xxxxx Xxxxxxx Xxxxx
00 00000 Xxxx xx Xxxxxxx XX Storage - Torrance
46 59369 Xxxx xx Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxx
00 00000 Bank of America 000 Xxxxxxxx Xxxxxx
48 59128 Bank of America Xxxxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxx xx Xxxxxxx Xxxxxx Xxxxx
00 00000 Bank of America 0000 Xxxxxxxx Xxxxx
52 00000 Xxxx xx Xxxxxxx Xxxxxxx Power Company
53 58706 Bank of America Xx Xxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Eaglewood Apartments
57 59276 Bank of America Island Walk Shopping Center
59 59383 Bank of America The Atrium Building
60 59320 Bank of America Xxxxxxx Pointe Apartments
61 59005 Bank of America Desert North Commerce Center I
62 59006 Bank of America Desert North Commerce Center II
Subtotal Crossed Loans
63 59287 Bank of America Lake Point Apartments
64.1 00000 Xxxx xx Xxxxxxx Xxxx Store - Rehoboth Beach, DE
64.2 00000 Xxxx xx Xxxxxxx Xxxx Store - Royersford, PA
64.3 00000 Xxxx xx Xxxxxxx Xxxx Store - Aberdeen, MD
64 00000 Xxxx xx Xxxxxxx Xxxx Store Portfolio (Rollup)
65 59311 Bank of America Xxxxxx Xxxxx
00 00000 Bank of America 0000 Xxxxxxxx
67 59382 Bank of America University Xxxxxxx Apartments
68 59350 Bank of America Comfort Inn-Long Island City
69 58888 Bank of America Sherlock Self Storage - Woodinville, WA
70 58889 Bank of America Sherlock Self Storage - Bothell, WA
Subtotal Crossed Loans
71 59310 Bank of America Smyrna Crossing
72 59085 Bank of America 000 Xxxxxxxx Xxxxxx
73 59295 Bank of America US Storage - Westminster
74 58882 Bank of America Newburgh Crossing
75 12138 Bridger All American Self Storage
76 13664 Bridger Statewide Self Storage
Subtotal Crossed Loans
77.1 59288 Bank of America 000 Xxxx Xxxxxxxxxxx Xxxx
77.2 59288 Bank of America 000 Xxxx Xxxxxxxxxxx Xxxx
77 59288 Bank of America Xxxxxxxx Medical Offices (Rollup)
78 59317 Bank of America Hilton Garden Inn - North Point
79 14494 Bridger One Xx Xxxxxx Business Center
80 59322 Bank of America RDA Building
81 58957 Bank of America Xxx Xxxx Xxxxxxx
00 00000 Xxxxxxx Xxxxxxx Inn Xxxxxxx Xxxx
00 00000 Xxxxxxx Xxxx Naples Self Storage North
84 15547 Bridger Regency Place Apartments
85 15842 Bridger Xxxxxxxx Xxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxxxxxx by Marriott (McAllen)
87 59044 Bank of America Xxxxxxx Xxxxx
00 00000 Bank of America Lakes at West Covina
89 59200 Bank of America 0000 Xxxxxx Xxxxx Self Storage
90 15978 Bridger Northgate Villas
91 59349 Bank of America XXX Xxxxxxxxx
00 00000 Xxxxxxx Xxxxxxxxxx Apartments
93 59373 Bank of America Milestone Square Shopping Center
94 59378 Bank of America Xxxxx Xxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Siegen Self Storage Facility
97 59293 Bank of America 000 Xxxxxx Xxxxxx
98 16382 Xxxxxxx Xxxxxxx Park
99 59390 Bank of America Airport Self Storage
101 59139 Bank of America PA Marriott Portfolio: Springhill Suites-West Mifflin, PA
104 15892 Bridger Parkside Commons Apartments
105 59348 Bank of America Xxxx Cove Xxxxx Center
106 59265 Bank of America 00 Xxxxxxxx Xxx
108 59308 Bank of America Xxxxxxxxx Xxxxxxxx Xxxxxx
000 00000 Xxxxxxx Xxxxxxx Technology Center
110 15262 Bridger Desertbrook Apartments
112 59232 Bank of America Harbor North
113 13734 Bridger Xxxxxxxxxx Xxxxxx Xxxx - Xxxxxxxxx
000 00000 Bank of America Southside Shopping Center
115 59213 Bank of America Xxxxxxx Xxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx AutoMall Self Storage
117 59395 Bank of America Xxxxxx Xxxxx
000 00000 Xxxxxxx Xxxxxxxxxxx Apts.
119 12725 Bridger Cambridge Apartments
120 15274 Bridger Greenbrier Village Condominium Apartments
121 13712 Bridger Mission Hospital Xxxxxx
000 00000 Xxxxxxx Xxxx Xxxxxx Xxxxxx Xxxxxxxx
123 59376 Bank of America Xxxxxx Xxxx Xxxxxxxxxx
000 00000 Xxxxxxx Quality Self Storage - Lochmoor - Ft. Xxxxx
125 15470 Bridger Walgreens at the Market at Xxxxx Branch
126 59305 Bank of America Sunset of Avon
127 14481 Bridger The Xxxxx Xxxxxx Xxxxxxxx X
000 00000 Xxxxxxx Xxxxxx Self Storage - Carolina Beach Road
129 59199 Bank of America 1415 Old Oakland Self Storage
130 14715 Bridger Xxx Xxxxx Xxxxxx Xxxxxxxx X
000 00000 Xxxxxxx XxxXx - Xxxxxxxxxx
133 14466 Bridger Eagles Landing
134 14124 Bridger Xxxxxx X Xxxxxxx
000 00000 Xxxxxxx Xxxxxxxxxx Xxxxx
136 58948 Bank of America Xxxx Xxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxxxx Xxxx Self Storage
138 15590 Bridger Meadow Park Plaza
140 15268 Bridger Crossroads Center - Bend
141 59226 Bank of America Holiday Inn Express - Houston
142 59194 Bank of America Holiday Inn Express - Monaca, PA
143 14773 Xxxxxxx Xxxxxxx Homes Apartments
144 13727 Xxxxxxx Xxxxxxx Industrial Portfolio
145 14147 Bridger Space Place Self Storage
146 13388 Bridger Corner View Commons
148 59162 Bank of America Poway Road Mini Storage
149 14252 Bridger Trademark Plaza
150 15196 Xxxxxxx Xxxxxx Rainbow Xxxxxx
000 00000 Xxxx xx Xxxxxxx Xxxxxxxx Xxxx Xxx Self Storage
152 14785 Xxxxxxx Xxxxxxxx Terrace
153 11839 Bridger Xxxxxxx Xxxxxx Xxxxxxx
000 00000 Xxxxxxx Xxxxxxxxx Xxxxxxx
155 14824 Bridger Osprey Point
156 14787 Bridger Windcom Court
157 12477 Xxxxxxx Xxxxxxx Plaza - Walgreens
158 15245 Bridger Quality Self Storage - Bradenton
159 59307 Bank of America 6900 Camp Bowie
161 14897 Xxxxxxx Xxxxxx Centre II
162 15136 Bridger River Run Apartments
163 15629 Bridger North Peoria Retail
Total
Sequence Number Street Address
--------------- --------------------------------------------------------------------
1 000 Xxxx Xxxxxx
2 Various
4 22219 Summit Vue Lane
5 000 Xxxxxx Xxxxxx
0 000 Xxxxxxx Xxxx
7 675 L Street
8 000 Xxxxxxxxx Xxxxxx Xxxxxx
9 0000 X Xxxxxx, XX
10 18005 Xxxx Xxxxx Xxxxxx
00 0 Xxx Xxxxxxx Xxxx
12 9890-10500 X. 00xx Xxxxxx
00 0000,0000 and 0000 Xxxx Xxxxxxx Xxxxx
14 0000 Xxxxxx Xxxxxx
16 21851 & 00000 Xxxxxxx Xx
00 0000 X XX Xxxxxxx 89
21 000 Xxxx 00xx Xxxxxx
22 0000 Xxxxxxxxx Xxxxxx
23 0000 Xxxxxxxxx Xxxxxx
24 000 00xx Xxxxxx Xxxxx
25 0000 Xxxxxx Xxxxx
27 000 Xxxx Xxx Xxxxxx Xxxx
28 0000 Xxxxxxxxxx Xx XX
29 000 Xxxxxxx Xxxxxx
30 350 Rhode Island Xxxxxx
00 0000 Xxxxxxxxx Xxxxxx
33 6322 South 3000 East
34 11734, 11778, 00000 Xxxxx Xxxxxxxx Xx & 00000 X Xxxx Xxxx Xxxx
35 0000 XX Xxxxxxxx Xxxxx
37 0000 Xxxxxxxx Xxxx Xxxx
38 000 Xxxxxxx Xxxxxxxxx
41 000 Xxxxxxx Xxxx
00 0000 Xxxxxxx Speedway
43 5745 East Pacific Coast Xxxxxxx
00 00000 Xxxxxxxx Xxxx.
46 26650 Xxx Xxx Xxxx
00 000 Xxxxxxx Xxxxxx
48 10810 Xxxxxxxx Xxxxx
00 000-000 Xxxxxxx Xxxxxx
50 0000 Xxxxxxxx Xxxxx
52 0000 Xxxxxxx Xxxxx Xxxx
53 0000 Xxxxx Xxxxxxxx Xxxxxxx
56 0000 Xxxxxxx Xxxxxx
57 0000 Xxxxxx Xxxx
59 16700 Valley View Xxxxxx
00 0000 Xxxxx Xxxxxx
61 42201 and 00000 Xxxxx 00xx Xxxxx
62 42101 and 00000 Xxxxx 00xx Xxxxx
63 0000 Xxxx Xxxxx Xxxxx
64.1 4500 Highway One
64.2 0000 Xxxxx Xxxx
64.3 000 Xxxxx Xxxxxxxxxxxx Xxxxxxxxx
64 Various
65 3101-3189 Xxxxxx Xxxxxxx
00 0000 Xxxxxxxx
67 0000 Xxxxxxxx Xxx
00 00-00 Xxxxxxxx Xxxxxx
69 00000 X Xxxxxxx Xxxx
70 00000 Xxxxxxx Xxx
71 2870 - 0000 Xxxxxxx 000 XX
72 000 Xxxxxxxx Xxxxxx
73 14528 Xxxxxxx Xxxxxx
00 Xxxxx 000 and Xxxxx 00X
00 0000 Xx Xxxxx Xxxxxxxxx
00 00000 Van Buren Boulevard
77.1 000 Xxxx Xxxxxxxxxxx Xxxx
77.2 000 Xxxx Xxxxxxxxxxx Xxxx
77 Various
78 00000 Xxxxxxx Xxxx
79 00000 Xxxxxxxx Xxxx
80 000 Xxxxxxx Xxx.
81 0000 Xxxxx Xxxx Xxxxxx
82 1005 Xxxxx Drive
83 00000 Xxxxxxxxx Xxxx
84 2800-2840 South Xxxxxxx Xxxxxxxxx
00 0000 Xxxxxx Xxxxxxxxx
86 0000 Xxxxx 00xx Xxxxxx
87 2655 & 0000 Xxxxxxx Xxxxxxxxx
88 1230 & 0000 Xxxxx Xxxxx
89 8328 Center Drive
90 0000 Xxxxxxxx Xxxxx
91 000 Xxxxxx Xxxxxx Xxxx
92 3985 East Xxxxx Xxxxxx
00 00 Xxxxx Xxxxxx
94 1540, 1555, 0000 Xxxxx Xxxx Xxxxx
96 8566 Siegen Lane
97 000 Xxxxxx Xxxxxx
98 0000 Xxxxxxx Xxxxxx
99 3800 Campus Drive
101 0000 Xxxxx Xxxxxx
000 0000-0000 Xxxxx Xxxxxxxx Boulevard
105 000-000 Xxxx Xxxxxx
106 00 Xxxxxxxx Xxx
108 0000 X. Xxxx Xxxxxx & 000 X. Xxxx
000 000 Xxxxxxx Xxxxxxxxx
110 0000 Xxxx Xxxxxxxxx Xxxxxx
112 2320 & 0000 Xxxxxx Xxxxxxxxx
113 0000 Xxxxxxxxx Xxxxx
000 000 Xxxxx Xxxxxxxxxx Ave
115 0000 Xxxxxxx Xxxxxx Xxxx
000 00000 Xxxxxx Road
117 000 Xxxxxx Xxxxxx
118 0000 Xxxxx Xxxxxx
119 0000-0000 Xxxx Xxxxxx
120 101 - 000 Xxxxx Xxxxxx
121 1031 Xxxxxxx Xxxx
000 00000 Bee Xxxxx Xxxx
000 00 Xxxxxx Xxxx Xxxxx
124 4150 Xxxxxxx Bridge Parkway
125 0000 Xxxxx Xxxxxx Xxxxxxx
126 000 Xxxx Xxxx Xxxxxx
127 2310 Xxxxx Xxx Xxxxx
000 0000 Xxxxxxxx Xxxxx Xxxx
129 1415 Old Oakland Self Storage
130 2320 Xxxxx Xxx Xxxxx
000 000 Xxxxx Xxxx
133 000-000 Xxxxxx Xxxxxxx Xxxxxxx
134 0000 X. Xxxxxx Xxxxx Xxxx.
135 1200 Xxxxx Xxxxxxxxx
000 000 Xxxxxxxx Xxxx
137 00-X Xxxxxxxx Xxxx Xxxxxx
138 0000 Xxxxxxxx Xxxxx West
140 533, 547 & 000 XX Xxxxxxxx Xxxxx
141 0000 X. Xxx Xxxxxxx Xxxxxxx East
142 000 Xxxxx Xxxxxx Xxxx
143 0000-0000 Xxxxxxx Xxxxx and 0000-0000 Xxxxxxx Xxxxx Xxxx
144 301-311 West First Street, 0000 Xxx Xxxx Xxxx Xxxx,
0000 Xxx Xxxx Xxxx Road, 2239 Southwest Road, 0000-0000 Xxxxx Xxxxxx
145 0000 Xxxxx Xxx Xxxxxxx 40
146 1425 Xxxxxxx Xxxxxx Xxxx.
000 00000 Xxxxx Xxxx
149 0000-0000 X. Xxxxxxxx Xxxxxxxxx
150 0000 X. Xxxxxxx Xxxx
151 0000 XX Xxxxxxx Xxxxxx
152 17851-17899 XX Xxxxxxxx Xxxx
000 0000 Xxxxx Xxxx School Rd
154 11640 Brook Xxxxxx Xxxx
000 000 XX Xxxxx Xxxxx
156 6101 Windcom Court
157 13721-13751 San Pablo Avenue
158 1930 Xxxxxx Road West
159 6900 Camp Bowie
161 3965 W. 000xx Xxxxxx
000 000 Xxxx Xxxxxxxx
163 0000 Xxxxx Xxxxxx Xxxxxx
Sequence Number City State Zip Code Mortgage Rate (%) Amortization Basis Original Balance
--------------- --------------- -------- -------- ----------------- ------------------ ----------------
1 Xxx Xxxx XX 00000 4.495% Actual/360 $260,000,000
2 Various Various Various 5.236% Actual/360 150,000,000
4 Xxxxxxxx Xxxxx XX 00000 4.900% Actual/360 120,000,000
5 Xxxx Xxxxx XX 00000 5.016% Actual/360 114,200,000
6 Xxxxxxx XX 00000 4.864% Actual/360 110,000,000
7 Xxx Xxxxx XX 00000 5.651% Actual/360 105,000,000
8 Xxxxxxxx XX 00000 5.626% Actual/360 78,500,000
9 Xxxxxxxxxx XX 00000 5.380% Actual/360 67,000,000
10 Xxxxxx Xxxxxxx XX 00000 4.970% Actual/360 57,000,000
00 Xxxxx Xxxxx XX 00000 5.350% Actual/360 53,280,000
12 Xxxxxxxxxx XX 00000 5.459% Actual/360 47,500,000
13 Xxxxxxx XX 00000 5.199% Actual/360 46,000,000
14 Xxxxxxx XX 00000 5.166% Actual/360 43,000,000
16 Xxxxxxxxxx Xxxxx XX 00000 5.091% Actual/360 41,000,000
19 Xxxxxxxxx XX 00000 4.966% Actual/360 37,000,000
21 Xxx Xxxx XX 00000 5.243% Actual/360 28,040,000
22 Xxxxxxxxx XX 00000 5.743% Actual/360 11,060,000
23 Xxxxxxxxx XX 00000 5.743% Actual/360 10,112,088
24 Xxxxxxxxx XX 00000 5.743% Actual/360 6,125,000
25 Xxxxxxxxx XX 00000 5.743% Actual/360 1,041,912
28,339,000
27 Xxxx XX 00000 6.440% Actual/360 25,733,000
28 Xxxxxxxx XX 00000 5.525% Actual/360 24,000,000
29 Xxxxxx XX 00000 4.960% Actual/360 23,537,000
30 Xxx Xxxxxxxxx XX 00000 5.580% Actual/360 22,080,000
31 Xxx Xxxxx XX 00000 5.109% Actual/360 21,500,000
33 Xxxx Xxxx Xxxx XX 00000 5.181% Actual/360 21,000,000
34 Xxxxxx XX 00000 5.365% Actual/360 19,500,000
35 Xxxxxx XX 00000 5.549% Actual/360 19,330,000
37 Xxxxxxxxx XX 00000 4.950% Actual/360 18,300,000
38 Xxxxxx XX 00000 5.220% Actual/360 17,663,000
41 Xxxxxx XX 00000 5.626% Actual/360 16,762,985
42 Xxxxxxx XX 00000 5.129% Actual/360 16,500,000
43 Xxxx Xxxxx XX 00000 5.179% Actual/360 16,400,000
44 Xxxxxxxx XX 00000 5.111% Actual/360 16,000,000
46 Xxxxxxxx XX 00000 5.147% Actual/360 14,660,000
47 Xxxxxxxx XX 00000 5.432% Actual/360 14,560,000
48 Xxxxxxxxx XX 00000 5.462% Actual/360 14,400,000
49 Xxxxxx XX 00000 4.897% Actual/360 14,300,000
50 Ft. Xxxxxxxxxx XX 00000 5.216% Actual/360 14,000,000
52 XxXxxxxxx XX 00000 5.212% Actual/360 12,675,000
53 Xxx Xxxxx XX 00000 5.654% Actual/360 15,000,000
56 Xxxxxxxx XX 00000 5.128% Actual/360 12,000,000
57 Xxxxxxxxxx Xxxxx XX 00000 5.248% Actual/360 11,520,000
59 Xx Xxxxxx XX 00000 5.336% Actual/360 10,750,000
60 Xxxxxxxxx XX 00000 5.356% Actual/360 10,500,000
61 Xxxxxxx XX 00000 5.350% Actual/360 6,800,000
62 Xxxxxxx XX 00000 5.350% Actual/360 3,700,000
10,500,000
63 Xxxxxxxxx XX 00000 5.361% Actual/360 10,400,000
64.1 Xxxxxxxx Xxxxx XX 00000 3,483,660
64.2 Xxxxxxxxxx XX 00000 3,483,660
64.3 Xxxxxxxx XX 00000 3,282,680
64 Various Various Various 5.872% Actual/360 10,250,000
65 Xxxxxx Xxxx XX 00000 5.426% Actual/360 9,880,000
66 Xxx Xxxx XX 00000 5.032% Actual/360 9,750,000
67 Xx. Xxxxxxxx XX 00000 4.920% Actual/360 9,632,500
00 Xxxx Xxxxxx Xxxx XX 00000 5.737% Actual/360 9,187,500
69 Xxxxxxxxxxx XX 00000 5.570% Actual/360 4,751,937
70 Xxxxxxx XX 00000 5.554% Actual/360 4,288,552
9,040,489
71 Xxxxxxx XX 00000 5.682% Actual/360 9,018,435
72 Xxxxxxxx XX 00000 5.366% Actual/360 9,000,000
73 Xxxxxxxxxxx XX 00000 5.707% Actual/360 8,500,000
74 Xxxxxxxx XX 00000 4.691% 30/360 8,415,000
75 Xxx Xxxxx XX 00000 5.154% Actual/360 4,605,000
76 Xxxxxxxxx XX 00000 5.154% Actual/360 3,792,000
8,397,000
77.1 Xxx Xxxxxxxxxx XX 00000 4,477,064
77.2 Xxx Xxxxxxxxxx XX 00000 3,522,936
77 Xxx Xxxxxxxxxx XX 00000 5.523% Actual/360 8,000,000
78 Xxxxxxxxxx XX 00000 5.650% Actual/360 8,000,000
79 Xxx Xxxxxxx XX 00000 5.297% Actual/360 7,720,000
80 Xxxxxxx XX 00000 5.480% Actual/360 7,600,000
81 Xxxxxxxxxxxxx XX 00000 5.146% Actual/360 7,210,000
82 Xxxxxxx Xxxx XX 00000 5.623% Actual/360 7,200,000
83 Xxxxxx XX 00000 5.458% Actual/360 6,875,000
84 Xxx Xxxxx XX 00000 5.439% Actual/360 6,800,000
85 Xxx Xxxxx XX 00000 5.183% Actual/360 6,690,000
86 XxXxxxx XX 00000 5.673% Actual/360 6,700,000
87 Xx Xxxxx XX 00000 5.205% Actual/360 6,600,000
88 Xxxx Xxxxxx XX 00000 5.561% Actual/360 6,500,000
89 Xx Xxxx XX 00000 5.220% Actual/360 6,300,000
90 Xxxx XX 00000 5.241% Actual/360 6,185,000
91 Xxxx Xxxxxx XX 00000 5.234% Actual/360 5,950,000
92 Xxxxxxxx Xxxxxxx XX 00000 5.653% Actual/360 5,500,000
00 Xxxxxxxx Xxxxxx XX 00000 5.335% Actual/360 5,500,000
94 Xxxxxxxxxx XX 00000 5.609% Actual/360 5,475,000
96 Xxxxx Xxxxx XX 00000 5.757% Actual/360 5,340,033
97 Xxxxxxxxx XX 00000 5.527% Actual/360 5,338,627
00 Xxxxx Xx XX 00000 5.702% Actual/360 5,300,000
99 Xxxxxxx Xxxxx XX 00000 5.315% Actual/360 5,250,000
000 Xxxxxxxxxx XX 00000 5.318% Actual/360 5,250,000
104 Xxxxxxxx XX 00000 5.369% Actual/360 5,040,000
000 Xxxx Xxxx XX 00000 5.212% Actual/360 5,000,000
000 Xxxxxxxx XX 00000 5.305% Actual/360 5,000,000
000 Xxxxx Xxxxx XX 00000 5.443% Actual/360 4,650,000
000 Xxxxxxx XX 00000 5.415% Actual/360 4,620,000
000 Xxxxxxxxx XX 00000 5.030% Actual/360 4,550,000
000 Xxxxx Xxxx XX 00000 5.004% Actual/360 4,500,000
000 Xxx Xxxxxx XX 00000 5.207% Actual/360 4,500,000
000 Xxxxxxxx XX 00000 5.596% Actual/360 4,424,000
000 Xxxxxxxxxxx XX 00000 4.923% Actual/360 4,400,000
000 Xxxxxxx XX 00000 5.398% Actual/360 4,400,000
000 Xxx Xxxxx XX 00000 5.186% Actual/360 4,400,000
000 Xxxxxxxxxx XX 00000 5.236% Actual/360 4,370,000
000 Xxxxxxxxxx XX 00000 5.923% Actual/360 4,250,000
000 Xxxxxxx XX 00000 5.129% Actual/360 4,100,000
000 Xxx Xxxxxxxx XX 00000 5.197% Actual/360 4,050,000
000 Xxxxxx XX 00000 5.479% Actual/360 4,020,000
000 Xxxxxxxx XX 00000 5.664% Actual/360 4,000,000
000 Xxxx Xxxxx XX 00000 5.108% Actual/360 4,000,000
000 Xxxxxx XX 00000 5.037% Actual/360 4,000,000
000 Xxxx XX 00000 5.162% Actual/360 4,000,000
000 Xxx Xxxxx XX 00000 5.427% Actual/360 3,850,000
000 Xxxxxxxxxx XX 00000 5.551% Actual/360 3,700,000
000 Xxx Xxxx XX 00000 5.386% Actual/360 3,700,000
000 Xxx Xxxxx XX 00000 5.427% Actual/360 3,650,000
000 Xxxxxxxxx XX 00000 5.571% Actual/360 3,500,000
000 Xxxxxxxxxxx XX 00000 5.443% Actual/360 3,460,000
000 Xxxxxxx XX 00000 5.650% Actual/360 3,480,000
000 Xxxxxxx XX 00000 5.384% Actual/360 3,320,000
000 Xxxxxxx XX 00000 5.610% Actual/360 3,300,000
000 Xxxxxxxx XX 00000 5.429% Actual/360 3,300,000
000 Xxxxxxxx XX 00000 5.400% Actual/360 3,225,000
000 Xxxx XX 00000 5.109% Actual/360 3,120,000
000 Xxxxxxx XX 00000 5.642% Actual/360 3,010,000
000 Xxxxxx XX 00000 5.452% Actual/360 3,000,000
000 Xxxxxx XX 00000 5.449% Actual/360 3,000,000
000 Xxxxxxx XX 00000 5.700% Actual/360 3,000,000
000 Xxxx Xxxx XX 00000 5.250% Actual/360 2,800,000
000 Xxxxxxxxxxx XX 00000 5.617% Actual/360 2,750,000
000 Xxxxx XX 00000 5.042% Actual/360 2,500,000
000 Xxxxxxx XX 00000 5.316% Actual/360 2,490,000
000 Xxx Xxxxx XX 00000 5.009% Actual/360 2,477,000
000 Xxxx Xxx XX 00000 5.329% Actual/360 2,380,000
152 Xxxxx XX 00000 5.115% Actual/360 2,350,000
000 Xxxxxxxxxxxx XX 00000 5.960% Actual/360 2,325,000
000 Xxxxxxx XX 00000 5.320% Actual/360 2,300,000
000 Xxxx XX 00000 5.475% Actual/360 2,300,000
000 Xxxxx XX 00000 5.682% Actual/360 2,058,500
000 Xxx Xxxxx XX 00000 5.380% Actual/360 2,000,000
000 Xxxxxxxxx XX 00000 5.276% Actual/360 2,000,000
000 Xxxx Xxxxx XX 00000 5.443% Actual/360 1,971,030
161 Xxxxxx XX 00000 5.520% Actual/360 1,300,000
000 Xxxxxx XX 00000 5.667% Actual/360 1,240,000
000 Xxxxx XX 00000 6.108% Actual/360 1,018,000
Sequence Number Cut-off Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
--------------- --------------- ------------------------------------------ -------------------- -------- ---------------
1 $260,000,000 118 10/1/2015 1 $987,407
2 150,000,000 120 12/1/2015 1 785,499
4 120,000,000 59 11/1/2010 1 496,806
5 114,200,000 112 4/1/2015 1 614,188
6 109,743,317 118 10/1/2015 1 581,395
7 105,000,000 113 5/1/2015 1 606,131
8 78,500,000 120 12/1/2015 1 373,113
9 67,000,000 121 1/1/2016 1 375,390
10 57,000,000 60 12/1/2010 1 239,354
11 53,001,405 115 7/1/2015 1 297,523
12 47,500,000 120 12/1/2015 1 268,479
13 46,000,000 120 12/1/2015 1 252,548
14 43,000,000 119 11/1/2015 1 235,215
16 41,000,000 119 11/1/2015 1 222,383
19 37,000,000 119 11/1/2015 1 155,245
21 28,040,000 120 12/1/2015 1 154,716
22 10,808,870 98 2/1/2014 1 64,496
23 9,882,482 98 2/1/2014 1 58,968
24 5,985,925 98 2/1/2014 1 35,718
25 1,018,254 98 2/1/2014 1 6,076
27,695,532
27 25,109,767 93 9/1/2013 1 161,636
28 24,000,000 121 1/1/2016 1 136,646
29 23,537,000 118 10/1/2015 1 125,777
30 22,080,000 167 11/1/2019 1 126,478
31 21,500,000 118 10/1/2015 1 116,853
33 21,000,000 120 12/1/2015 1 115,067
34 19,500,000 118 10/1/2015 1 88,392
35 19,309,037 119 11/1/2015 1 110,349
37 18,300,000 117 9/1/2015 1 97,680
38 17,663,000 118 10/1/2015 1 97,208
41 16,762,985 120 12/1/2015 1 96,508
42 16,500,000 118 10/1/2015 1 89,881
43 16,364,163 118 10/1/2015 1 89,842
44 16,000,000 118 10/1/2015 1 86,980
46 14,660,000 120 12/1/2015 1 80,020
47 14,543,858 119 11/1/2015 1 82,050
48 14,400,000 119 11/1/2015 1 81,419
49 14,300,000 119 11/1/2015 1 59,166
50 13,969,646 118 10/1/2015 1 77,014
52 12,675,000 114 6/1/2015 1 69,694
53 12,500,000 120 12/1/2015 1 86,623
56 12,000,000 117 9/1/2015 1 65,361
57 11,520,000 120 12/1/2015 1 63,600
59 10,750,000 120 12/1/2015 1 59,936
60 10,500,000 119 11/1/2015 1 58,673
61 6,800,000 116 8/1/2015 1 37,972
62 3,700,000 116 8/1/2015 1 20,661
10,500,000
63 10,400,000 58 10/1/2010 1 58,146
64.1 3,480,106
64.2 3,480,106
64.3 3,279,331
64 10,239,544 119 11/1/2015 1 60,613
65 9,869,034 119 11/1/2015 1 55,640
66 9,750,000 116 8/1/2015 1 41,453
67 9,632,500 118 10/1/2015 1 40,042
68 9,161,299 118 10/1/2015 1 57,727
69 4,742,363 114 6/1/2015 1 27,190
70 4,279,854 114 6/1/2015 1 24,495
9,022,217
71 9,018,435 119 11/1/2015 1 52,240
72 8,981,098 118 10/1/2015 1 50,347
73 8,500,000 120 12/1/2015 1 49,372
74 8,415,000 59 11/1/2010 1 32,896
75 4,605,000 117 9/1/2015 1 25,156
76 3,792,000 117 9/1/2015 1 20,715
8,397,000
77.1 4,467,973
77.2 3,515,782
77 7,983,756 118 10/1/2015 1 45,539
78 7,965,088 118 10/1/2015 1 55,711
79 7,720,000 117 9/1/2015 1 42,855
80 7,591,650 119 11/1/2015 1 43,057
81 7,210,000 115 7/1/2015 1 39,351
82 7,179,065 118 10/1/2015 1 44,745
83 6,875,000 117 9/1/2015 1 39,970
84 6,800,000 117 9/1/2015 1 38,350
85 6,690,000 118 10/1/2015 1 36,665
86 6,670,421 117 9/1/2015 1 41,839
87 6,600,000 116 8/1/2015 1 29,025
88 6,486,909 118 10/1/2015 1 37,155
89 6,280,401 118 10/1/2015 1 37,641
90 6,185,000 118 10/1/2015 1 34,119
91 5,950,000 118 10/1/2015 1 32,797
92 5,500,000 117 9/1/2015 1 31,758
93 5,493,791 119 11/1/2015 1 30,661
94 5,475,000 120 12/1/2015 1 31,462
96 5,340,033 120 12/1/2015 1 31,187
97 5,338,627 119 11/1/2015 1 24,930
98 5,300,000 180 12/1/2020 1 30,768
99 5,250,000 120 12/1/2015 1 29,202
101 5,238,861 118 10/1/2015 1 29,212
104 5,040,000 118 10/1/2015 1 28,204
105 5,000,000 119 11/1/2015 1 22,018
106 4,977,204 118 10/1/2015 1 33,846
108 4,644,855 119 11/1/2015 1 26,236
109 4,620,000 118 10/1/2015 1 25,986
110 4,550,000 118 10/1/2015 1 24,509
112 4,489,800 118 10/1/2015 1 24,168
113 4,480,363 116 8/1/2015 1 24,729
114 4,419,244 119 11/1/2015 1 25,386
115 4,400,000 117 9/1/2015 1 23,414
116 4,400,000 118 10/1/2015 1 25,419
117 4,400,000 119 11/1/2015 1 24,123
118 4,360,565 118 10/1/2015 1 24,093
119 4,208,864 113 5/1/2015 1 27,204
120 4,070,173 178 10/1/2020 1 32,699
121 4,041,184 118 10/1/2015 1 22,231
122 4,015,582 119 11/1/2015 1 22,772
123 4,000,000 83 11/1/2012 1 23,125
124 3,986,376 117 9/1/2015 1 21,738
125 3,986,181 117 9/1/2015 1 21,563
126 3,981,433 118 10/1/2015 1 26,758
127 3,837,708 117 9/1/2015 1 21,684
128 3,695,989 119 11/1/2015 1 21,127
129 3,688,803 118 10/1/2015 1 22,470
130 3,638,346 117 9/1/2015 1 20,557
132 3,496,220 106 10/1/2014 1 20,029
133 3,460,000 118 10/1/2015 1 19,522
134 3,458,690 54 6/1/2010 1 20,099
135 3,320,000 120 12/1/2015 1 18,610
136 3,300,000 119 11/1/2015 1 18,965
137 3,296,339 119 11/1/2015 1 18,590
138 3,218,276 118 10/1/2015 1 18,109
140 3,109,375 117 9/1/2015 1 16,957
141 3,010,000 120 12/1/2015 1 18,740
142 2,991,022 118 10/1/2015 1 18,337
143 2,990,465 57 9/1/2010 1 16,938
144 2,967,483 115 7/1/2015 1 20,977
145 2,787,892 116 8/1/2015 1 15,462
146 2,736,441 115 7/1/2015 1 15,817
148 2,500,000 116 8/1/2015 1 10,650
149 2,490,000 117 9/1/2015 1 11,184
150 2,477,000 117 9/1/2015 1 13,311
151 2,380,000 119 11/1/2015 1 13,259
152 2,342,007 117 9/1/2015 1 12,781
153 2,321,624 119 11/1/2015 1 14,923
154 2,295,122 118 10/1/2015 1 12,801
155 2,286,222 116 8/1/2015 1 14,090
156 2,058,500 117 9/1/2015 1 11,924
157 2,000,000 117 9/1/2015 1 12,139
158 1,993,415 117 9/1/2015 1 11,076
159 1,968,849 119 11/1/2015 1 11,121
161 1,296,154 118 10/1/2015 1 7,999
162 1,234,520 117 9/1/2015 1 7,739
163 1,015,277 118 10/1/2015 1 6,626
$2,254,868,003
Sequence Number Administrative Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
--------------- ----------------------- -------------------------- ------------------------- ------------------
1 0.021% 0.010% 0.010% Fee
2 0.061% 0.050% 0.010% Fee
4 0.021% 0.010% 0.010% Fee
5 0.021% 0.010% 0.010% Fee
6 0.021% 0.010% 0.010% Fee
7 0.021% 0.010% 0.010% Fee/Leasehold
8 0.021% 0.010% 0.010% Fee
9 0.021% 0.010% 0.010% Fee
10 0.021% 0.010% 0.010% Fee
11 0.021% 0.010% 0.010% Fee
12 0.021% 0.010% 0.010% Fee
13 0.021% 0.010% 0.010% Fee
14 0.021% 0.010% 0.010% Fee
16 0.021% 0.010% 0.010% Leasehold
19 0.041% 0.030% 0.010% Fee
21 0.041% 0.030% 0.010% Fee
22 0.041% 0.030% 0.010% Fee/Leasehold
23 0.041% 0.030% 0.010% Fee/Leasehold
24 0.041% 0.030% 0.010% Fee/Leasehold
25 0.041% 0.030% 0.010% Fee/Leasehold
27 0.041% 0.030% 0.010% Fee
28 0.061% 0.050% 0.010% Leasehold
29 0.041% 0.030% 0.010% Fee
30 0.041% 0.030% 0.010% Fee
31 0.041% 0.030% 0.010% Fee
33 0.041% 0.030% 0.010% Fee
34 0.061% 0.050% 0.010% Fee/Leasehold
35 0.061% 0.050% 0.010% Fee
37 0.041% 0.030% 0.010% Fee
38 0.061% 0.050% 0.010% Fee
41 0.081% 0.070% 0.010% Fee
42 0.041% 0.030% 0.010% Fee
43 0.041% 0.030% 0.010% Fee
44 0.041% 0.030% 0.010% Fee
46 0.041% 0.030% 0.010% Fee
47 0.041% 0.030% 0.010% Fee
48 0.041% 0.030% 0.010% Leasehold
49 0.041% 0.030% 0.010% Fee
50 0.111% 0.100% 0.010% Fee
52 0.041% 0.030% 0.010% Fee
53 0.041% 0.030% 0.010% Fee
56 0.041% 0.030% 0.010% Fee
57 0.041% 0.030% 0.010% Fee
59 0.041% 0.030% 0.010% Fee
60 0.111% 0.100% 0.010% Fee
61 0.041% 0.030% 0.010% Fee
62 0.041% 0.030% 0.010% Fee
63 0.041% 0.030% 0.010% Fee
64.1 Fee
64.2 Fee
64.3 Fee
64 0.041% 0.030% 0.010% Fee
65 0.041% 0.030% 0.010% Fee
66 0.041% 0.030% 0.010% Fee
67 0.041% 0.030% 0.010% Fee
68 0.041% 0.030% 0.010% Fee
69 0.041% 0.030% 0.010% Fee
70 0.041% 0.030% 0.010% Fee
71 0.041% 0.030% 0.010% Fee
72 0.041% 0.030% 0.010% Fee
73 0.041% 0.030% 0.010% Fee
74 0.041% 0.030% 0.010% Fee
75 0.061% 0.050% 0.010% Leasehold
76 0.061% 0.050% 0.010% Fee
77.1 Fee
77.2 Fee
77 0.041% 0.030% 0.010% Fee
78 0.041% 0.030% 0.010% Fee
79 0.061% 0.050% 0.010% Fee
80 0.041% 0.030% 0.010% Fee
81 0.041% 0.030% 0.010% Fee
82 0.071% 0.060% 0.010% Fee
83 0.071% 0.060% 0.010% Leasehold
84 0.071% 0.060% 0.010% Fee
85 0.061% 0.050% 0.010% Fee
86 0.061% 0.050% 0.010% Fee
87 0.041% 0.030% 0.010% Fee
88 0.041% 0.030% 0.010% Fee
89 0.041% 0.030% 0.010% Leasehold
90 0.061% 0.050% 0.010% Fee
91 0.041% 0.030% 0.010% Fee
92 0.061% 0.050% 0.010% Fee
93 0.041% 0.030% 0.010% Fee
94 0.041% 0.030% 0.010% Fee
96 0.041% 0.030% 0.010% Fee
97 0.041% 0.030% 0.010% Fee
98 0.061% 0.050% 0.010% Fee
99 0.041% 0.030% 0.010% Fee
101 0.041% 0.030% 0.010% Fee
104 0.061% 0.050% 0.010% Fee
105 0.041% 0.030% 0.010% Fee
106 0.041% 0.030% 0.010% Fee
108 0.041% 0.030% 0.010% Fee
109 0.061% 0.050% 0.010% Fee
110 0.061% 0.050% 0.010% Fee
112 0.041% 0.030% 0.010% Fee
113 0.061% 0.050% 0.010% Fee
114 0.041% 0.030% 0.010% Fee
115 0.111% 0.100% 0.010% Fee
116 0.061% 0.050% 0.010% Fee
117 0.111% 0.100% 0.010% Fee
118 0.091% 0.080% 0.010% Fee
119 0.081% 0.070% 0.010% Fee
120 0.061% 0.050% 0.010% Fee
121 0.061% 0.050% 0.010% Fee
122 0.081% 0.070% 0.010% Fee
123 0.041% 0.030% 0.010% Fee
124 0.081% 0.070% 0.010% Fee
125 0.061% 0.050% 0.010% Fee
126 0.041% 0.030% 0.010% Fee
127 0.081% 0.070% 0.010% Fee
128 0.091% 0.080% 0.010% Fee
129 0.041% 0.030% 0.010% Fee
130 0.081% 0.070% 0.010% Fee
132 0.071% 0.060% 0.010% Fee
133 0.061% 0.050% 0.010% Fee
134 0.061% 0.050% 0.010% Fee
135 0.061% 0.050% 0.010% Fee
136 0.041% 0.030% 0.010% Fee
137 0.061% 0.050% 0.010% Fee
138 0.061% 0.050% 0.010% Fee
140 0.061% 0.050% 0.010% Fee
141 0.041% 0.030% 0.010% Fee
142 0.041% 0.030% 0.010% Fee
143 0.081% 0.070% 0.010% Fee
144 0.081% 0.070% 0.010% Fee
145 0.071% 0.060% 0.010% Fee
146 0.081% 0.070% 0.010% Fee
148 0.041% 0.030% 0.010% Fee
149 0.091% 0.080% 0.010% Fee
150 0.061% 0.050% 0.010% Fee
151 0.041% 0.030% 0.010% Fee
152 0.061% 0.050% 0.010% Fee
153 0.091% 0.080% 0.010% Fee
154 0.091% 0.080% 0.010% Fee
155 0.061% 0.050% 0.010% Fee
156 0.061% 0.050% 0.010% Fee
157 0.061% 0.050% 0.010% Fee
158 0.091% 0.080% 0.010% Fee
159 0.041% 0.030% 0.010% Fee
161 0.091% 0.080% 0.010% Fee
162 0.061% 0.050% 0.010% Fee
163 0.061% 0.050% 0.010% Fee
Sequence Number Crossed Original Amortization (months) ARD Loan Grace Period
--------------- ----------- ------------------------------ -------- ------------
1 0 Yes 0
2 Scheduled Amortization Xx 0
0 0 Xx 0
0 000 Xx 0
6 360 No 10
7 360 Xx 0
0 0 Xx 0
0 000 Xx 5
10 0 No 5
11 360 No 5
12 360 Xx 0
00 000 Xx 0
00 000 Xx 5
16 360 Xx 0
00 0 Xx 0
00 000 Xx 0
00 XXXX 00-0-X 000 Xx 10
23 BACM 05-6-A 360 Xx 00
00 XXXX 00-0-X 000 Xx 10
25 BACM 05-6-A 360 No 10
27 360 No 10
28 360 Yes 5
29 360 Xx 00
00 000 Xx 00
00 000 Xx 5
33 360 Xx 0
00 0 Xx 0
00 000 Xx 5
37 360 Xx 0
00 000 Xx 0
00 000 Xx 5
42 360 Xx 0
00 000 Xx 0
00 000 Xx 5
46 360 No 5
47 360 No 5
48 360 Xx 0
00 0 Xx 0
00 000 Xx 10
52 360 Xx 00
00 000 Xx 0
00 000 Xx 5
57 360 Xx 0
00 000 Xx 0
00 000 Xx 5
61 BACM 05-6-B 360 Xx 0
00 XXXX 00-0-X 000 Xx 5
63 360 No 7
64.1
64.2
64.3
64 360 No 5
65 360 No 5
66 0 Xx 0
00 0 Xx 0
00 000 Xx 5
69 BACM 05-6-C 360 No 5
70 BACM 05-6-C 360 Xx 0
00 000 Xx 0
00 000 Xx 5
73 360 No 5
74 0 No 5
75 BACM 05-6-D 360 Xx 0
00 XXXX 00-0-X 000 Xx 5
77.1
77.2
77 360 No 5
78 240 Xx 0
00 000 Xx 0
00 000 Xx 5
81 360 No 5
82 300 No 5
83 336 Xx 0
00 000 Xx 0
00 000 Xx 5
86 300 Xx 0
00 0 Xx 0
00 000 Xx 5
89 300 Xx 0
00 000 Xx 0
00 000 Xx 5
92 360 Xx 0
00 000 Xx 0
00 000 Xx 5
96 360 Xx 0
00 0 Xx 0
00 000 Xx 5
99 360 No 5
101 360 Xx 0
000 000 Xx 0
000 0 Xx 5
106 240 No 5
108 360 No 5
109 360 No 5
110 360 Xx 0
000 000 Xx 0
000 000 Xx 5
114 360 No 5
115 360 No 5
116 336 Xx 0
000 000 Xx 0
000 000 Xx 5
119 300 No 5
120 180 Xx 0
000 000 Xx 0
000 000 Xx 5
123 360 No 10
124 360 Xx 0
000 000 Xx 0
000 000 Xx 5
127 360 Xx 0
000 000 Xx 0
000 000 Xx 5
130 360 No 5
132 360 No 5
133 360 Xx 0
000 000 Xx 0
000 000 Xx 5
136 360 Xx 0
000 000 Xx 0
000 000 Xx 5
140 360 Xx 0
000 000 Xx 0
000 000 Xx 5
143 360 Xx 0
000 000 Xx 0
000 000 Xx 5
146 360 Xx 0
000 0 Xx 0
000 0 Xx 5
150 360 No 5
151 360 Xx 0
000 000 Xx 0
000 000 Xx 5
154 360 Xx 0
000 000 Xx 0
000 000 Xx 5
157 300 No 5
158 360 No 5
159 360 Xx 0
000 000 Xx 0
000 000 Xx 5
163 300 No 5
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances. The
Seller has validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance; provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
provided, if the related assignment of Mortgage and/or assignment of Assignment
of Leases has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which, individually or in the aggregate, 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, individually or in the aggregate, 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, individually or in the aggregate, 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, individually or in the aggregate, materially interfere with the security
intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage; and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part, in each such
event in a manner which would materially interfere with the benefits of the
security intended to be provided by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (except in the case of a Mortgage Loan
maintained on the records of MERS, including endorsement and delivery of the
related Mortgage Note to the Purchaser and recording of the related Assignment
of Mortgage in favor of Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions including, without limitation, foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located) and, subject to the exceptions set forth in Paragraph 13
below, enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. As of the Cut-off Date, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least (A) 12 months or (B) for the restoration period plus 180
days. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available and was required to be maintained by
FEMA, a flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. For each Mortgaged Property
located in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which
indicated a PML of less than 20% was prepared, based on a 450 or 475-year look
back with a 10% probability of exceedance in a 50-year period, at origination
for such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage. If the Mortgaged Property is located in
Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina or South Carolina such Mortgaged Property is
insured by windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
full insurable value, or 100% of the replacement cost, of the improvements
located on the related Mortgaged Property. With respect to each Mortgage Loan
that has a principal balance as of the origination date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability. With respect to
each Mortgage Loan, the related Mortgage requires that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy will be
applied in accordance with the related Mortgage Loan documents either to the
repair or restoration of the related Mortgaged Property or to the payment of
amounts due under such Mortgage Loan; provided that the related Mortgage may
entitle the related Borrower to any portion of such proceeds remaining after the
repair or restoration of the related Mortgaged Property or payment of amounts
due under the Mortgage Loan; and provided, further, that, if the related
Borrower holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in Paragraph 18 below). At origination, the Seller received
evidence that each Mortgaged Property was insured by a commercial general
liability policy in an amount not less than $1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the subject
Mortgage Loan and as of the Cut-off Date no Borrower under a Mortgage Loan was a
debtor in any state or federal bankruptcy, insolvency or similar proceeding. As
of the Closing Date, to the Seller's knowledge, no Borrower under a Mortgage
Loan was a debtor in any state or federal bankruptcy, insolvency or similar
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
(nor is the Seller otherwise aware) that such Ground Lease is not in
full force and effect or that any material default has occurred
under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised, would
cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a curable default
of the lessee under such Ground Lease following notice thereof from
the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)). Accordingly, the Seller represents and warrants that
each Mortgage Loan is directly secured by a Mortgage on a commercial property or
a multifamily residential property, and either (1) substantially all of the
proceeds of such Mortgage Loan were used to acquire, improve or protect the
portion of such commercial or multifamily residential property that consists of
an interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as defined below),
or (2) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of the Mortgage
Loan (a) as of the Testing Date, or (b) as of the Closing Date. For purposes of
the previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is on a
parity with the Mortgage Loan, and (2) the "Testing Date" shall be the date on
which the referenced Mortgage Loan was originated unless (a) such Mortgage Loan
was modified after the date of its origination in a manner that would cause
"significant modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant modification" did not
occur at a time when such Mortgage Loan was in default or when default with
respect to such Mortgage Loan was reasonably foreseeable. However, if the
referenced Mortgage Loan has been subjected to a "significant modification"
after the date of its origination and at a time when such Mortgage Loan was not
in default or when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. Any prepayment premiums and yield
maintenance charges applicable to the Mortgage Loan constitute "customary
prepayment penalties" within the meaning of Treasury Regulations Section
1.860G-1(b)(2).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. (a) each Mortgaged Property securing a
Mortgage Loan (exclusive of any related personal property) is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage and that are not bonded or escrowed for or covered
by title insurance, and (b) no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage and that is not bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (a) the satisfaction of certain legal and underwriting requirements, (b)
the payment of a release price at least equal to all amounts due and owing under
such Mortgage Loan )or, in the case of a partial release, the related allocated
loan amount) in respect of the Mortgaged Property to be released and, if
required by the related Mortgage Loan documents, prepayment consideration in
connection therewith or (c) the substitution of real property collateral upon
the satisfaction of certain legal and underwriting requirements; and provided,
further, that any Mortgage Loan may permit the unconditional release of one or
more unimproved parcels of land to which the Seller did not give any material
value in underwriting the Mortgage Loan. The release provisions in any Mortgage
Loan if exercised would not cause such Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance in an amount to make all
scheduled payments under the Mortgage Note either through and including the
maturity date of the loan or to the first date that the Borrower can prepay the
Loan without a prepayment premium (a) no earlier than two years following the
Closing Date and (b) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan and Seller has not received notice of any event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of acceleration
under any such documents, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and/or the related Mortgaged
Property; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule II or by the
exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions (including but not limited to
existing and future mezzanine debt) mentioned in the related Mortgage Loan
Documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy or pollution legal liability policy, then the Seller has delivered or
caused to be delivered to the insurer under such policy copies of all
environmental reports in the Seller's possession related to such Mortgaged
Property to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing and collection of the
Mortgage Loans by the Seller or a sub-servicer retained by the Seller has been
legal, proper and prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; provided, if the related security agreement and/or UCC
Financing Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the Seller
shall take all actions as are necessary to cause the Trust to be shown as the
owner of the Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination and to the Seller's knowledge as of the Cut-off Date,
each Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
51. Additional Collateral. Each related Mortgage does not provide
for or permit, without the prior written consent of the holder of the Mortgage
Note, each related Mortgaged Property to secure any other promissory note or
obligation, other than any other Mortgage Loan. The Mortgage Note is not secured
by any collateral that is not included in the Trust Fund.
52. Advances After Origination. No advance of funds has been made
after origination, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's knowledge, no funds have been received from any person other
than the Mortgagor, for or on account of payments due on the Mortgage Note or
the Mortgage, other than earnout advances made in accordance with the Mortgage
loan documents and reflected in the loan balance on the Mortgage Loan Schedule.
53. Originator Authorization. To the extent required under
applicable law as of the date of origination, and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of such
Mortgage Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it originated and held
the Mortgage Loan.
54. Capital Contributions. Neither the Seller nor any affiliate
thereof has any obligation to make any capital contributions to the Mortgagor
under the Mortgage Loan.
55. Appointment of Receiver. If the Mortgaged Property is subject to
any leases, the borrower is the owner and holder of the landlord's interest
under any leases and the related Mortgage and assignment of rents provides for
the appointment of a receiver for rents or allows the mortgagee to enter into
possession to collect rent or provides for rents to be paid directly to the
mortgagee in the event of default.
SCHEDULE IIA
------------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
---------------------------------------------
REPRESENTATION 14
Insurance.
----------
The mortgage lender from time to time permits insurance policies to be
terminable with respect to non-payment, upon 10 days' prior written notice to
the mortgagee.
Rainbow Plaza (59044) The related Borrower was required to amend
an existing unsecured loan agreement within
five days of the related Mortgage Loan
closing date. The related Borrower did not
amend such loan document, however the
unsecured loan has been paid in full.
Hickory Valley Apartments (59213) The related mortgage Borrower is not
required to maintain terrorism insurance
coverage.
000 Xxxx 00xx Xxxxxx Apartments
(59409)
000 Xxxx Xxxxxx (59147) The issuers of the insurance policies
required by the related Mortgage Loan
agreement require written notice to the
mortgagee if the insurance policies have not
been renewed three days prior to expiration.
Elk Ridge Apartments (59394) A small mail building on the related
Mortgaged Property is located in a flood
zone, however this portion of the Mortgaged
Property was not deemed to be material and
flood insurance was not required.
XXXXXXXXXXXXXX 00
Xxxxxxxxx Xxxxxx Only.
----------------------
Baptist West MOB (59128) The fee interest appears to be subject to a
pre-existing first lien securing the bond
indebtedness of related lessor, however
ground lessor has agreed not to disturb the
ground lessee.
The related Ground Lease does not provide
mortgagee with the right to consent to an
amendment or termination of such Ground
Lease.
The related lessor has a right of first
offer and a continuing right to purchase the
project, and such lessor will either take
title subject to the related Mortgage or pay
all prepayment fees if paid at closing.
Paramus Park Mall (59416) The related Ground Lease (which related only
to additional parking which was not given
value in the underwriting of the related
Mortgage Loan) (the "Parking Ground
Lease")does not extend at least twenty years
beyond the Stated Maturity Date of the
Mortgage Loan.
The Parking Ground Lease does not provide
mortgagee with the right to consent to an
amendment or termination of the Parking
Ground Lease.
The Parking Ground Lease does not provide
mortgagee with the right to enter into a new
lease with Lessor upon termination of the
Parking Ground Lease.
The Parking Ground Lease provides that
Lessee may assign the Ground Lease to any
present or future owner, ground lessee or
mortgagee of Paramus Park Shopping Center
(in addition to several listed entities) but
does not provide for any subsequent
assignment or subletting without consent.
The Parking Ground Lease does not provide
mortgagee with any rights to casualty
proceeds and only provides for limited
rights of Lessee to a condemnation award for
relocation expenses.
The Parking Ground Lease provides that it
shall be subject and subordinate to all
underlying leases and to mortgages and trust
deeds which may affect such leases or the
real property of which the Demised Premises
(as defined in the Lease) is a part.
The Parking Ground Lease provides for a
termination right by Lessor in the event
Lessor constructs a building on either
section of the Demised Premises.
No ground lessor estoppel certificate
relating to default was provided. However,
the related Borrower certifies to those
matters in the Loan Agreement. In addition,
the Loan Agreement provides for recourse to
Borrower in the event the Parking Ground
Lease is terminated and the related
Mortgaged Property (as defined in the Loan
Agreement) fails to meet the parking
requirements under applicable zoning law.
REPRESENTATION 22
Legal Proceedings.
------------------
Xxxxxxxx Xxxx Apartments (59086) The related Borrower is attempting to obtain
a letter with regard to Americans with
Disabilities Act compliance due to closet
doors on the laundry area of the apartments.
The related Borrower has proposed the
removal of such doors if a handicapped
person rents an apartment. The related
Borrower is waiting for governmental
affirmation of that solution.
Omni Hotel - San Diego (58930) Litigation relating to the construction of
the related Mortgaged Property is ongoing.
At the time of closing of the related
Mortgage Loan there were several mechanics
liens that appeared of record relating to
the construction of the related Mortgaged
Property. In addition, the related Borrower
was named in a lawsuit which corresponded to
the liens. The related Borrower escrowed
funds with a title company to cover payment
of these liens while the related Borrower
pursued its rights to dispute the claims.
The title policy received does not reflect
these liens.
REPRESENTATION 28
Releases of Mortgaged Properties.
---------------------------------
KinderCare Portfolio (59414) Provided that no event of default has
occurred and is continuing, Section 2.7 of
the related Mortgage Loan agreement permits
the related borrower to obtain the release
of an individual property from the lien of
the related mortgage and related obligations
upon satisfying the following conditions
including, without limitation, receipt by
the mortgagee of a certified copy of an
amendment to the "Master Lease" reflecting
the deletion of the individual property to
be released, which amendment shall reduce
the rental obligations of KinderCare
Learning Corporation thereunder by an amount
equal to the rental obligation associated
with the individual property that is to be
released. The release price for each
individual property shall be 115% of the
allocated loan amount to a third party
purchaser or the greater of 115% of the
allocated loan amount and the then appraised
value of such individual property to an
affiliate of the related Borrower.
Omni Hotel - San Diego (58930) The related Borrower's rights relating to a
certain easement known as the "R-7 Parcel"
may be terminated. The right to terminate
the easement is not vested with the related
Borrower, but with a division of the City of
San Diego (the owner of the R-7 Parcel).
Should the City choose to exercise its right
to terminate the easement, the related
Borrower will be entitled to payment from
such division of the City of San Diego. The
related Mortgage Loan documents require that
Borrower pay to mortgagee either a set
amount of $2,638,000 or an amount based on a
then current appraisal of the R-7 Parcel in
connection with the release of the easement.
The easement provides that in the event the
easement is terminated as to the parking,
replacement parking must be provided.
REPRESENTATION 33
No Material Default.
--------------------
NVR Warehouse (59349) Article 10 of the related Mortgage Loan
agreement requires the Borrower to execute a
Lockbox Agreement and there is no evidence
in the related loan file that such Lockbox
Agreement has been executed.
City Center (57467) The related Mortgage Loan agreement requires
the Borrower to establish a lockbox account
and deliver to mortgagee an executed lockbox
account services agreement acceptable to the
mortgagee in its sole discretion on or prior
to the date which is thirty days after the
closing date of such Mortgage Loan. The
related Mortgage Loan agreement requires the
Borrower to provide certain executed
estoppel certificates from the tenants set
forth on Exhibit C to the related Mortgage
Loan agreement on or prior to the date which
is thirty days after the closing date of
such Mortgage Loan., which estoppel
certificates are required to be acceptable
to the mortgagee in its sole discretion.
000 Xxxx Xxxxxx (59147) The related Borrower has a post-closing
obligation to provide an amended certificate
of occupancy in connection with tenant
improvement work..
REPRESENTATION 35
Single Purpose Entity.
----------------------
Flagstaff Mall (59374) The related Borrower is permitted to acquire
certain land around the perimeter of the
related Mortgaged Property, called the "Mall
Renovation Acquisition Parcels".
REPRESENTATION 37
Tax Parcels.
------------
Omni Hotel - San Diego (58930) A portion of the Mortgaged Property
constituting the "R-7 Parcel" is not a
separate tax parcel. The R-7 Parcel is the
portion of the Mortgaged Property in which
the related Borrower has an easement and
sub-leasehold interest. This R-7 Parcel is
currently owned by a division of the city of
San Diego and as such, pursuant to the REA
(as defined in the Loan Agreement), is not
subject to property taxes.
REPRESENTATION 48
UCC Financing Statements.
-------------------------
NVR Warehouse (59349) None of the attorney opinion letters
addresses whether the UCC Financing
Statement to be filed with the Delaware
Secretary of State creates a valid perfected
security interest.
BACM 2005-6 SECURITIZATION
REP EXCEPTIONS FOR THE BRIDGER MORTGAGE LOANS
Exception 18 - Leasehold Estate Only:
With respect to the Washington State Attorney General's Office Building
Mortgage Loan, the Ground Lease does not provide that 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.
With respect to the All American Self Storage Mortgage Loan, the
Borrower's leasehold interest is subordinate to a fee mortgage granted by the
Ground Lessor to its secured lender (the "Ground Lessor's Lender"), but Ground
Lessor's Lender and Borrower have entered into a non-disturbance agreement that
provides, among other things, that so long as Borrower, as tenant, is not in
default in the payment of rent or in its performance under the Ground Lease,
then the Ground Lessor's Lender will not (i) interfere with the Borrower's
possession of the Mortgaged Property, (ii) disturb, affect or impair Borrower's
occupancy of the Mortgaged Property, (iii) name or join Borrower, or any
leasehold mortgagee of the Borrower, in any proceeding brought by the Ground
Lessor's Lender to enforce its rights in the event of a default under the Ground
Lessor's loan documents, and (iv) upon any foreclosure by Ground Lessor's
Lender, Ground Lessor's Lender and Borrower have agreed that upon Borrower's
attornment to Ground Lessor's Lender, Borrower will remain in possession of the
Mortgaged Property for the then remaining balance of the term of the Ground
Lease and any extensions and renewals. Also, upon any such foreclosure,
Borrower, or any leasehold mortgagee of Borrower, shall have the same remedies
against Ground Lessor's Lender for Ground Lessor's Lender's breach, as it would
have had against Ground Lessor under the Ground Lease.
Exception 23 - Other Mortgage Liens:
The Mortgaged Property securing the Summit Xxxxx Apartments Mortgage Loan
is encumbered by a subordinate mortgage lien in the amount of $1,600,000.
Exception 41 - Servicing Rights:
Servicing rights have been granted as follows:
Loan Servicer
---- --------
FedEx - Burlington Capstone Realty Advisors
Space Place Self Storage Capstone Realty Advisors
Cambridge Apartments Collateral Mortgage Capital
Corner View Commons Collateral Mortgage Capital
Xxxxxxx Homes Apartments Collateral Mortgage Capital
Lake Pointe Office Building Collateral Mortgage Capital
Olde Naples Self Storage North Collateral Mortgage Capital
Quality Self Storage - Bradenton Collateral Mortgage Capital
Quality Self Storage - Lochmoor
- Ft. Xxxxx Collateral Mortgage Capital
Regency Place Apartments Collateral Mortgage Capital
Xxxxxxx Industrial Portfolio Collateral Mortgage Capital
The Plaza Office Building A Collateral Mortgage Capital
The Plaza Office Building B Collateral Mortgage Capital
Trademark Plaza Collateral Mortgage Capital
Village Square Shoppes Collateral Mortgage Capital
Hampton Inn Bossier City Financial Federal Savings Bank
Carmel Centre II Laureate Capital LLC
Xxxxxx Self Storage -
Carolina Beach Road Laureate Capital LLC
Sandstone Commons Laureate Capital LLC
Stonebridge Apts. Laureate Capital LLC
All American Self Storage Midland Loan Services, Inc.
AutoMall Self Storage Midland Loan Services, Inc.
Xxxxxxx Plaza - Walgreens Midland Loan Services, Inc.
Courtyard by Marriott (McAllen) Midland Loan Services, Inc.
Crossroads Center - Bend Midland Loan Services, Inc.
Desertbrook Apartments Midland Loan Services, Inc.
Double D Storage Midland Loan Services, Inc.
Xxxxxx Technology Park Midland Loan Services, Inc.
Eagles Landing Midland Loan Services, Inc.
Expressway Plaza Midland Loan Services, Inc.
Greenbrier Village Condominium
Apartments Midland Loan Services, Inc.
Hampton Technology Center Midland Loan Services, Inc.
Juliet Rainbow Office Midland Loan Services, Inc.
Xxxxxxxx Terrace Midland Loan Services, Inc.
Maryland Park Apartments Midland Loan Services, Inc.
Meadow Park Plaza Midland Loan Services, Inc.
Mission Hospital Office Midland Loan Services, Inc.
North Peoria Retail Midland Loan Services, Inc.
Northgate Villas Midland Loan Services, Inc.
One Xx Xxxxxx Business Center Midland Loan Services, Inc.
Osprey Point Midland Loan Services, Inc.
Xxxxxxx Park Midland Loan Services, Inc.
Parkside Commons Apartments Midland Loan Services, Inc.
River Run Apartments Midland Loan Services, Inc.
Sheridan Park Self Storage Midland Loan Services, Inc.
Statewide Self Storage Midland Loan Services, Inc.
Summit Xxxxx Apartments Midland Loan Services, Inc.
The Waterford Apartments Midland Loan Services, Inc.
Timberlane Apartments Midland Loan Services, Inc.
Walgreens at the Market at
Xxxxx Branch Midland Loan Services, Inc.
Washington State Attorney General
Office Buiding Midland Loan Services, Inc.
Windcom Court Midland Loan Services, Inc.
Windermere Office Bldg - Soundview Midland Loan Services, Inc.
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The following Mortgage Loans are the Bridger Mortgage Loans:
All American Self Storage
AutoMall Self Storage
Xxxxxxx Plaza - Walgreens
Cambridge Apartments
Carmel Centre II
Corner View Commons
Courtyard by Marriott (McAllen)
Crossroads Center - Bend
Desertbrook Apartments
Double D Storage
Xxxxxx Technology Park
Eagles Landing
Expressway Plaza
FedEx - Burlington
Greenbrier Village Condominium Apartments
Hampton Inn Bossier City
Hampton Technology Center
Juliet Rainbow Office
Xxxxxxx Homes Apartments
Xxxxxxxx Terrace
Lake Pointe Office Building
Xxxxxx Self Storage - Carolina Beach Road
Maryland Park Apartments
Meadow Park Plaza
Mission Hospital Office
North Peoria Retail
Northgate Villas
Olde Naples Self Storage North
One Xx Xxxxxx Business Center
Osprey Point
Xxxxxxx Park
Parkside Commons Apartments
Quality Self Storage - Bradenton
Quality Self Storage - Lochmoor - Ft. Xxxxx
Regency Place Apartments
River Run Apartments
Sandstone Commons
Sheridan Park Self Storage
Space Place Self Storage
Xxxxxxx Industrial Portfolio
Statewide Self Storage
Stonebridge Apts.
Summit Xxxxx Apartments
The Xxxxx Xxxxxx Xxxxxxxx X
Xxx Xxxxx Xxxxxx Xxxxxxxx X
The Waterford Apartments
Timberlane Apartments
Trademark Plaza
Village Square Shoppes
Walgreens at the Market at Xxxxx Branch
Washington State Attorney General Xxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxx Xxxx - Xxxxxxxxx
