EXHIBIT 99
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of April 9, 2003, between Bank of America, N.A., as
seller (the "Seller" or "Bank of America") and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of the
Mortgage Loans to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. and/or Fitch Ratings
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of April 1, 2003 (the "Pooling and Servicing Agreement"), among BACM,
as depositor, Bank of America, as master servicer (the "Master Servicer"),
Midland Loan Services Inc., as special servicer (the "Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, the "Trustee")
and as REMIC administrator (in such capacity, the "REMIC Administrator"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not otherwise defined herein have the respective meanings assigned to them
in the Pooling and Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("Banc of America"), Deutsche Bank Securities Inc., Xxxxxxx,
Xxxxx. Co. and Xxxxxx Xxxxxxx & Co. Incorporated (collectively, the
"Underwriters") pursuant to an underwriting agreement, dated as of March 31,
2003 (the "Underwriting Agreement"). BACM intends to sell the one or more of the
remaining Classes of Certificates (the "Non-Registered Certificates") through
Banc of America, as placement agent thereof, pursuant to a private placement
agreement March 31, 2003 (the "Placement Agreement"), between Banc of America
and BACM. The Registered Certificates are more fully described in the prospectus
dated March 31, 2003 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated March 31, 2003 (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 four private placement memoranda each dated March 28, 2003 (the "Memoranda"),
as each may be amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters and certain related
parties with respect to certain disclosure regarding the Mortgage Loans and
contained in the Prospectus and certain other disclosure documents and offering
materials relating to the Certificates, pursuant to an indemnification
agreement, dated as of March 31, 2003 (the "Indemnification Agreement"), among
the Seller, the Purchaser and the Underwriters.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase the
Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing which amount
shall be payable on April 9, 2003 in immediately available funds.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or, if so directed by the Purchaser, to the
Trustee or a custodian designated by the Trustee (a "Custodian"), the Mortgage
File (as defined in Section 2(e)) with respect to each of the Mortgage Loans;
provided that the Purchaser hereby directs the Seller to prepare and the Seller
shall prepare or cause to be prepared (or permit the Purchaser to prepare) with
respect to the Mortgage Loans, the assignments of Mortgage, assignments of
Assignment of Leases and UCC financing statements on Form UCC-2 or UCC-3, as
applicable, from the Seller in favor of the Trustee (in such capacity) or in
blank. The Seller shall at its expense, within 45 days after the Closing Date
or, in the case of a Replacement Mortgage Loan, after the related date of
substitution, unless recording/filing information is not available by such time
for assignments solely due to recorder's office delay, in which case such
submission shall be made promptly after such information does become available
from the recorder's office, submit or cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment referred to
in the immediately preceding sentence. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall in each such case promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter shall in each such case, at its own expense,
submit the substitute or corrected documents or cause such to be submitted for
recording or filing, as appropriate.
(d) On or before the Closing Date, the Seller shall deliver or cause
to be delivered to the Purchaser or to its designee all of the following items:
(i) asset summaries delivered to the Rating Agencies, originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and originals or copies of all
documents, certificates and opinions in the possession or under the control of
the Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Mortgage Loans and that are reasonably
required for the ongoing administration and servicing of the Mortgage Loans
(except to the extent such items represent attorney-client privileged
communications and confidential credit analysis of the client or are to be
retained by a sub-servicer that will continue to act on behalf of the Purchaser
or its designee); and (ii) all Escrow Payments and Reserve Funds in the
possession of the Seller (or under its control) with respect to the Mortgage
Loans. Unless the Purchaser notifies the Seller in writing to the contrary, the
designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the Master Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the 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, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(e)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(e) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan.
(g) The Seller shall in connection with the interest of a related
Mortgagor under a Ground Lease, in each case at its own expense, promptly (and
in any event within 45 days of the Closing Date) notify the related ground
lessor (with a copy of such notice to the Master Servicer) of the transfer of
such Mortgage Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Trustee.
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule 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 in equity or at law for a
breach of the Seller's representations and warranties set forth in Section 4,
subject to the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Breach or Document Defect.
Within 90 days of the earlier of discovery or receipt of written notice by the
Seller that there has been a Material Breach or a Material Document Defect (such
90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects or (ii) repurchase each affected Mortgage Loan (including the ES1
Subordinate Components of the ES1 Mortgage Loan, the SB Subordinate Components
of the SM Component Mortgage Loan and in the case of the Wellbridge A/B Mortgage
Loan, the Wellbridge Senior Note A-1 and the Wellbridge Note B Loan only) (each,
a "Defective Mortgage Loan") at the related Purchase Price in accordance with
the terms hereof and, if applicable, the terms of the Pooling and Servicing
Agreement, with payment to be made in accordance with the reasonable directions
of the Purchaser; provided that if the Seller certifies in writing to the
Purchaser (i) that any such Material Breach or Material Document Defect, as the
case may be, does not and will not cause the Defective Mortgage Loan, to fail to
be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, in lieu of
repurchasing such Defective Mortgage Loan (except in the case of the ES
Component Mortgage Loan, the SB Component Mortgage Loan, the Wellbridge Note B
Loan or the Wellbridge Mortgage Loan) (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser. For purposes of remediating a Material Breach or Material
Document Defect with respect to any Mortgage Loan, "Resolution Extension Period"
shall mean the 90-day period following the end of the applicable Initial
Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set
forth in this Section 4(c) to cure a Material Breach or a Material Document
Defect or repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser with respect to any
Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) If the Seller cannot deliver on the Closing Date any document
that is required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
April 1, 2004, the Seller shall reconfirm its obligation to complete such
Mortgage File and to correct all deficiencies associated therewith, and,
if it fails to do so within 45 days after its receipt of such notice, the
Seller shall deliver to the Purchaser or its designee a limited power of
attorney (in a form reasonably acceptable to the Seller and the Purchaser)
permitting the Purchaser or its designee to execute all endorsements
(without recourse) and to execute and, to the extent contemplated by the
Pooling and Servicing Agreement, record all instruments or transfer and
assignment with respect to the subject Mortgage Loan, together with funds
reasonably estimated by the Purchaser to be necessary to cover the costs
of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) (e) If (i) any Mortgage Loan is required to be repurchased as
provided in Section 4(c) above, (ii) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan that is a part of a Cross-Collateralized
Group and (iii) the applicable Breach or Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any other
Cross-Collateralized Mortgage Loan in such Cross-Collateralized Group (without
regard to this paragraph), then the applicable Material Breach or Material
Document Defect, as the case may be, will be deemed to constitute a Material
Breach or Material Document Defect, as the case may be, as to any other
Cross-Collateralized Mortgage Loan in the Cross-Collateralized Group for
purposes of the above provisions, and the Seller will be required to repurchase
such other Cross-Collateralized Mortgage Loan(s) in the related
Cross-Collateralized Group in accordance with the provisions of this Section 4.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
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 KPMG LLP (the "Accountants")
in making available all information and taking all steps reasonably necessary to
permit the Accountants to deliver the letters required by the Underwriting
Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte time, on
the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Placement Agreement nor the Underwriting Agreement
shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters, and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser and the Underwriters may rely to the effect that (i) the
representations and warranties of the Seller in the Agreement are true and
correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Agreement to be performed or satisfied at or prior
to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser and the
Underwriters, dated the Closing Date and addressed to the Purchaser, the
Underwriters, the Trustee and each Rating Agency any other opinions of counsel
for the Seller reasonably requested by the Rating Agencies in connection with
the issuance of the Certificates; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and 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 Placement
Agent 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:
Xxxxx Xxxxxxx, telecopy number: (000) 000-0000, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, or to
such other addresses as may hereafter be furnished to the Purchaser by the
Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE
LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in this Agreement and
in the Pooling and Servicing Agreement and covering all the Mortgage Loans in
such Cross-Collateralized Group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan"
shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted
with one or more other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BANK OF AMERICA, N.A.
By: /s/
-------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Property Name
-------- ----------- --------------------------------------------------------------
1 56955 Xxxxx Crossing Apartments
2 56474 NYU 0xx Xxxxxx Xxxxxxxxxx
0 00000 XXX0 - Xx. Xxxxxxxx Apartments
4 57084 Sugar Run Xxxxxxxxxx
0 00000 XXX0 - Xxxxxxx Xxxxxx Apartments
6 56156 Xxxxxx Apartments
7 56880 Chatham Landing Apartments
8 53371 CLK2 - River Xxxxx Xxxxxxxxxx
0 00000 Xxxxxx Xxxxxx Xxxxxxxxxx
00 00000 CLK - The Courts at Waterford Apartments
11 56965 Regal Springs Apartments
12 56574 Coopers Mill Apartments
13 4198 The Ponds Apartments, Bloomington
14 56888 Xxxxxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxxxx Xxxxxxxxxx
00 00000 CLK - Sedgefield Apartments
17 56889 Dorado Heights Apartments
18 56656 Terrace Apartments
19 4824 Xxxxxx Apartments (Xxxxxx)
20 4732 Xxxxxx Apartments (Camino Xxxxxxx)
21 56918 Southbrook - Otsego Xxxxxx Xxxxxxxxxx
00 00000 Xxxxxxxx Xxxxx Apartments
23 56360 The Villas Apartments
24 56869 Brookside Manor Apartments
25 4723 Steeplechase Apartments Phase II
26 3637 Pines on the Bay
27 3525 Windsor Xxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxx Apartments
29 52748 Garden Club Apartments
30 52998 Collegiate Courtyard
31 3636 The Oaks, Gulfport
32 56916 Southbrook - Xxxxxxx Apartments
33 56917 Southbrook - Xxxxxxx Villas Apartments
34 56774 Prairie Oaks Senior Housing
35 56775 The Xxxxxxxxx Xxxxxx Xxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxx-Xxxxx Apartments
37 3341 Xxx Xxxxx Xxxxxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxx-Xxxxxx Apartments
39 56913 Southbrook - Greenwood Apartments
40 4176 Xxxxxxx Xxxxxxx Xxxxxxxxx
00 00000 Xxxxxxxxxx - Xxxxxxxx Apartments
42 5464 Xxxx Drive Apartments
43 56967 Xxxxxxx Xxxxxx Xxxx
00 00000 Xxxxxxxx Xxxx Commons
45 56932 Venice Crossroads
46 53893 Rogue Valley Mall
47 55876 Montour Church Place at Xxx Xxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxxx Oaks Shopping Center
49 56676 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxx Shopping Xxxxxx
00 00000 Xxxxxxxx Xxxxx Shopping Center
52 00000 Xxx Xxxx Shopping Center
53 51739 H-E-B Shopping Xxxxxx
00 00000 Xxxxxx Xxxxx Shopping Center
55 56878 Kohl's Department Store - Columbia, SC
56 52857 Xxxxx'x Xxxx Xxxxx
00 00000 Xxxxxx Xxxxx Shopping Center
58 00000 Xxx Xxxxx Xxxxxxx Shopping Xxxxxx
00 00000 Xxxxxxxxxx Xxxxxx
60 51805 Xxxxx Village Shopping Center
61 56063 Walgreens - Taylor, MI
62 00000 Xxxxx Xxxxx Shopping Center
63 53139 Pinefield South Center
64 56670 Sav-on Drug - Xxxxxx
00 00000 Xxxxxxxxx - Roselle, NJ
66 52969 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxx Xxxxxxx
00 00000 Xxxxxxxxx - Xxxxxx
69 00000 Xxxxxx Xxxxxxxx Shopping Center
70 56902 Walgreens - Clinton Highway, Knoxville
71 52161 Walgreens - Jacksonville, FL
72 56824 Walgreens - 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX
73 56233 CVS - Kannapolis
74 56231 CVS - Xxxxxxx Xxxxx
00 00000 Xxxxxxxxxxx Food Lion
76 56687 Walgreens - Des Moines (Xxxxxxxx), IA
77 3215 Gretna Retail Center
78 56230 CVS - Hickory
79 2777 CVS-Goldsboro
80 56232 CVS - Morganton
81 56184 Vero Beach Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxxx Corners Shopping Xxxxxx
00 00000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
00 00000 Sotheby's Building
85 56570 0000 Xxxxxxxx Xxxx.
86 54611 International Center IV
87 56826 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx
00 00000 Miramar Centre II
89 52991 Lincoln Center Xxxxxxxxxxxx Xxxxxx Xxxxxxxx
00 00000 ADP Xxxxxxxx
00 00000 Xxxxxxx Xxxx Business Center
92 56690 IKON Office/ Distribution Buildings
93 52876 00-00 Xxxxxx Xxxxxxxxx
94 3568 Rio West Office Xxxxxxx
00 00000 Xxxxxxx Medical Office
96 56922 Xxxxx Industrial Park
97 56485 Office Depot - Signal Hill, CA
98 56555 TNT Logistics Warehouse - Temperance, MI
99 56846 Xxxxxx Xxxxx
000 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxx Center
101.1 56783 Wellbridge Portfolio - Flagship Athletic Club
101.2 56783 Wellbridge Portfolio - Northwest Athletic Club-St. Louis Park
101.3 56783 Wellbridge Portfolio - Northwest Athletic Club-Crosstown
101.4 56783 Wellbridge Portfolio - Northwest Athletic Club-Xxxxx Lake
101.5 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Midtown
101.6 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Highpoint
101.7 56783 Wellbridge Portfolio - Xxxxxx Athletic Club
101.8 56783 Wellbridge Portfolio - Athletic Club Boca Raton
101.9 56783 Wellbridge Portfolio - New Mexico Sports & Wellness-Riverpoint
101.1 56783 Wellbridge Portfolio - Northwest Athletic Club-Normandale
101.11 00000 Xxxxxxxxxx Xxxxxxxxx - Xxxxxxxxx Athletic Club-Burnsville
101.12 56783 Wellbridge Portfolio - Xxxxxxxxx Xxxxxxxx Xxxx-00xx Xxxxxx
101.13 56783 Wellbridge Portfolio - Harbour Island Athletic Club
101.14 56783 Wellbridge Portfolio - Xxxxxxxxx Xxxxxxxx Xxxx-Xxxxxxx 000
101.15 56783 Wellbridge Portfolio - Northwest Athletic Club-Oakdale
101 56783 Wellbridge Portfolio (Roll-Up)
102 5315 Xxxxxx Xxxxxxx XXX
000 0000 Xxxxxxxxx Xxxxxxx XXX
104 5059 Dove Canyon MHC
105 5272 Superstition MHC
106 4926 Xxxxxxxx XXX
000 0000 Xxxx Xxxxx XXX
108.1 00000 Xxxxxxxxxxx-Xxxxxxxxx Xxxx Self Storage
108.2 00000 Xxxxxxxxxxx-Xxxx Xxxx Self Storage
108 56951 Morningstar-Pineville and Park Road Self Storage (Roll-Up)
109 56416 Lackland Self Storage
110 56950 Morningstar-Albemarle Self Storage
111 4393 Congress Mini Storage
112 0000 Xxxxxx Xxxxxx Self Storage
Total
Sequence
Number Street Address City State
-------- ------------------------------------------------------------------------------------------ --------------- -----
1 0000 Xxxxx Xxxx Xxxxxxxxxxxx XX
2 000 Xxxxxx (x/x/x 0-00 Xxxx 0xx Xxxxxx) Xxx Xxxx XX
3 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
4 0000 Xxx Xxxxxx Xxxx Xxxx Xxx Xxxxxx XX
5 000 X. Xxxxxxxx Xxxx Xxxxxxxxxx XX
6 00000 Xxxxxx Xxxxxxxxx Xxxxxxx XX
7 0000 X. Xxxxxxx Xxxxx Xxxxxxx XX
8 0000 Xxxxxx Xxxx Xxxxxxxxxx XX
9 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
10 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx XX
11 00000 Xxxxxxx Xxxx Xxxxxx XX
12 00000 Xxxx Xxxxxxx Xxxxxxx XX
13 2101-2303 General Electric Road Bloomington IL
14 000 Xxxx Xxxxxx XX Xxxxxxxxxxx XX
15 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
16 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX
17 00000 Xxxxxxxxxx Xxxxxxxxx XX Xxxxxxxxxxx XX
18 00000 00xx Xxxxxx X. Xxxxxxx XX
19 0000 X. Xxxxxx Xxxxxxxxx XX
20 0000 Xxxxxx Xxxxxxx Xxxxxxxxx XX
21 00000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX
22 2976 & 0000 Xxxxxx Xxxxxx Xxxx and 3001 & 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX
23 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX
24 0000 Xxxxxxx Xxx Xxxxxxx XX
25 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxx XX
26 0000 Xxxxxxxx Xxxx Xxxxxx XX
27 000 XX 000xx Xxxxxx Xxxxxxx XX
28 0000 XX Xxxxxxx Xxxxxx Xxxxxxxx XX
29 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
30 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX
31 0000 Xxxxxx Xxxxx Xxxxxxxx XX
32 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxx XX
33 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxx XX
34 000 Xxxxxxx Xxx Xxxxxxxxx Xxxxxx XX
35 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
36 15126-15132 Roscoe Boulevard Van Nuys CA
37 0000 Xxxxxxx Xxxxx Xxxxxxx XX
38 00000 Xxxxxx Xxxxxxxxx Xxx Xxxx XX
39 00000 Xxxxxx Xxxxxx Xxx Xxxx XX
40 10 - 00 Xxxxxxx Xxxxxxx Xxxxx Xxxxx XX
41 00000 Xxxxxx Xxxxxx Xxx Xxxx XX
42 0000 Xxxx Xxxxx Xxxxxxxxxxx XX
43 000 X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxx XX
44 7740 - 0000 X. Xxxxxxx Xxx., 355 - 000 X. Xxxxxxxxx Xxxx. and 7650 & 0000 X. Xxxxxxxx Xxx. Xxxxxxxx XX
45 0000 Xxxxxx Xxxxxxxxx Xxx Xxxxxxx XX
46 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
00 Xxxxxx Xxxx Xxxxx, 000-000 XxXxxxx Drive and 000-000 Xxxxx Xxxx. Xxxxxxxxxx XX
48 000-000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxx XX
49 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX
50 0000 Xxxx 0xx Xxxxxx Xxxxxx XX
51 0000 Xxxxxxx Xxxxxxx Xxxxxxx XX
52 00-00 Xxx Xxxx Xxxxx XX
53 SEC US Highway 77 and Indian Drive Waxahachie TX
54 10118 - 00000 Xxxxxxx Xxxxx Xxxxxxxxx XX
55 00000-000 Xxx Xxxxx Xxxx Xxxxxxxx XX
56 0000 Xxxx Xxxx Xxxx (Xxxxx 000) Xxxxxxxxxx XX
57 13823-13835 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX
58 4705 - 0000 Xxxxxx Xxxxxx Xxxxx Xxxxx Xxxxx XX
59 0000 Xxxxxxxxxxx Xxxx Xxxx Xxxx XX
60 0000 Xxxxxx Xxxx Xxxxxx XX
61 00000 Xxxxxx Xxxx Xxxxxx XX
62 0000 Xxxxx Xxxx 000 Xxxxx Xxxxxxx XX
63 0000-0000 Xxxxx Xxxxxxx Xxxxxxx XX
64 1300-1326 Xxxx 0xx Xxxxxx Xxxxxx XX
65 000 X. Xxxxx Xxxxxx Xxxxxxx XX
66 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxx Xxxxx XX
67 SE/c of XX Xxxxxxx 000 xxx Xxxxx Xxxxx Xxxxxxxxx XX
68 0000 X. Xxxxxx Xxxx Xxxx Xxxxxx XX
69 104 - 000 Xxxxx Xxxxx Xxxx XX
70 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX
71 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX
72 0000 Xxxxxx Xxxxxx Xxxxxxx XX
73 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX
74 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX
75 000 X. Xxxxx Xxxxxx (X.X. Xxxxxxx 000 Xxxxx) Xxxxxxxxxxx XX
76 0000 Xxxxx Xxx Xxxx Xxxxxxxx XX
77 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
78 0000 XX Xxxxxxx 000 Xxxxx Xxxxxxx XX
79 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxxx XX
80 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
81 0000 00xx Xxxxxx Xxxx Xxxxx XX
82 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxx XX
83 00000 Xxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX
84 0000 Xxxx Xxxxxx Xxx Xxxx XX
85 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX
86 0000 X. Xxxxxxx Xxxxxx Xxxxxx XX
87 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
88 0000 XX 000xx Xxxxxx Xxxxxxx XX
89 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx XX
90 00000 Xxxxxxxx Xxxxxx Xxxxxxxx XX
91 0000 X.X. 00xx Xxxxxx Xxxxx XX
92 1700 and 0000 Xxxx Xxxx Xxxxx XX
93 00-00 Xxxxxx Xxxxxxxxx Xxxxxxxx XX
94 000 Xxx Xxxx Xxxx Xxxxxxxxxxxxxxx XX
95 00 Xxxxxxx Xxxxxxxxx Xxxxxxx XX
96 000 Xxxxxxx X. XxXxxxxxx Xxxxxxx Xxxxxx XX
97 0000 Xxxx Xxxxxx Xxxxxx Xxxxxx Xxxx XX
98 0000 Xxxxx Xxxx Xxxxxxxxxx XX
99 410 - 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxx XX
100 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX
101.1 000 Xxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxxx XX
101.2 0000 Xxxxx Xxxx Xxxx Xx. Xxxxx Xxxx XX
101.3 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX
101.4 0000 XX Xxxxx Xxxx Xxxxx Xxxxxxx XX
101.5 0000 Xxxxxxxx Xxxxxx XX Xxxxxxxxxxx XX
101.6 0000 Xxxxxx Xxxxxx XX Xxxxxxxxxxx XX
101.7 000 Xxxxx Xxxxxx Xxxxxx XX
101.8 0000 Xxxxxx Xxxx Xxxx Xxxxx XX
101.9 0000 Xxxxx Xxxxxxxxx XX Xxxxxxxxxxx XX
101.1 0000 X. 00xx Xxxxxx Xxxxxxxxxxx XX
101.11 00000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX
101.12 0000 X. 00xx Xxxxxx Xxxxxxxxxxx XX
101.13 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx XX
101.14 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx Center MN
101.15 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxx XX
101
102 0000 Xxxxx Xxxxxxx Xxxx Xxxxxx XX
103 0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx XX
104 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx XX
105 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxx XX
106 0000 Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX
107 00 Xxxxxxx Xxxxxx Xxxxxxxx XX
108.1 00000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
108.2 00000 Xxxx Xxxx Xxxxxxxxx XX
108
109 0000 Xxxxxx Xxxxxx Xxxxxx XX
110 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
111 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
112 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
Remaining Term To
Sequence Stated Maturity
Number Zip Code Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance (months)
-------- -------- ----------------- ----------------- ---------------- --------------- -----------------
1 22801 5.700% ACT/360 26,000,000.00 25,940,900.20 118
2 10003 6.250% ACT/360 24,000,000.00 23,870,074.83 114
3 70058 6.200% ACT/360 19,280,000.00 19,280,000.00 76
4 43054 4.750% ACT/360 19,000,000.00 19,000,000.00 83
5 40207 6.200% ACT/360 17,120,000.00 17,120,000.00 76
6 32826 7.030% ACT/360 15,755,000.00 15,693,180.30 74
7 32826 5.830% ACT/360 14,500,000.00 14,500,000.00 125
8 63031 6.200% ACT/360 13,360,000.00 13,360,000.00 76
9 32218 4.750% ACT/360 12,400,000.00 12,386,035.17 59
10 37421 6.990% ACT/360 11,220,000.00 11,220,000.00 66
11 75243 5.660% ACT/360 9,300,000.00 9,278,721.99 118
12 77598 6.000% ACT/360 8,500,000.00 8,467,335.50 116
13 61701 5.704% ACT/360 7,440,000.00 7,416,380.01 117
14 87102 5.600% ACT/360 7,328,000.00 7,328,000.00 117
15 66047 5.400% ACT/360 6,600,000.00 6,584,244.50 118
16 29501 6.990% ACT/360 6,545,000.00 6,545,000.00 102
17 87111 5.600% ACT/360 5,936,000.00 5,936,000.00 117
18 98168 5.750% ACT/360 5,500,000.00 5,482,689.90 117
19 90046 5.834% ACT/360 2,500,000.00 2,494,440.22 118
20 90046 5.834% ACT/360 2,300,000.00 2,294,885.00 118
21 91601 5.300% ACT/360 4,546,035.00 4,535,004.00 58
22 53711 5.260% ACT/360 4,536,900.00 4,521,248.44 117
23 77087 7.260% ACT/360 4,470,000.00 4,431,542.50 50
24 33511 5.710% ACT/360 4,300,000.00 4,286,364.11 117
25 43615 6.000% ACT/360 4,000,000.00 3,984,628.47 90
26 39531 6.500% ACT/360 3,680,000.00 3,667,259.39 116
27 97233 5.509% ACT/360 3,600,000.00 3,596,617.16 119
28 97210 5.250% ACT/360 3,500,000.00 3,496,495.79 119
29 95826 6.500% ACT/360 3,400,000.00 3,376,828.37 112
30 27403 6.250% ACT/360 3,330,000.00 3,311,972.89 114
31 39507 6.500% ACT/360 3,280,000.00 3,268,644.23 116
32 91406 5.300% ACT/360 2,766,000.00 2,759,288.26 58
33 91406 5.300% ACT/360 2,729,154.00 2,722,531.67 58
34 53593 5.750% ACT/360 2,300,000.00 2,290,697.84 116
35 52003 5.750% ACT/360 2,285,000.00 2,275,758.54 116
36 91402 5.300% ACT/360 2,025,186.00 2,020,271.87 58
37 39206 6.022% ACT/360 1,800,000.00 1,787,231.32 115
38 91402 5.300% ACT/360 1,726,000.00 1,721,811.84 58
39 91401 5.300% ACT/360 1,347,912.00 1,344,641.27 58
40 14624 6.000% ACT/360 1,350,000.00 1,340,389.71 115
41 91401 5.300% ACT/360 1,336,986.00 1,333,741.77 58
42 61701 5.863% ACT/360 1,225,000.00 1,222,288.56 118
43 02760 4.957% ACT/360 103,950,000.00 103,950,000.00 119
44 80226 7.145% ACT/360 33,000,000.00 32,784,785.19 111
45 90034 5.710% ACT/360 30,500,000.00 30,430,784.44 118
46 97501 7.850% ACT/360 28,750,000.00 28,232,355.73 93
47 15275 7.000% ACT/360 27,000,000.00 26,835,478.56 112
48 91016 7.510% ACT/360 26,780,000.00 26,583,905.04 109
49 30022 6.030% ACT/360 10,571,000.00 10,519,950.21 115
50 78702 7.170% ACT/360 8,160,000.00 8,100,269.55 110
51 76022 7.300% ACT/360 8,100,000.00 8,010,553.42 105
52 03431 6.550% ACT/360 8,000,000.00 7,938,495.94 114
53 75165 7.150% ACT/360 7,500,000.00 7,451,145.57 111
54 95014 6.450% ACT/360 7,000,000.00 6,968,978.19 115
55 29229 6.170% ACT/360 6,900,000.00 6,852,202.00 115
56 02842 6.887% ACT/360 6,720,000.00 6,688,345.61 114
57 85032 7.095% ACT/360 6,250,000.00 6,208,753.59 111
58 54913 5.750% ACT/360 5,678,350.00 5,678,350.00 116
59 94303 6.915% ACT/360 5,600,000.00 5,561,448.10 111
60 75234 6.450% ACT/360 5,300,000.00 5,276,512.08 115
61 48180 7.740% ACT/360 4,590,000.00 4,558,256.64 109
62 78734 7.800% ACT/360 4,500,000.00 4,469,346.00 109
63 20601 6.880% ACT/360 4,435,000.00 4,410,222.78 113
64 92882 6.250% ACT/360 4,250,000.00 4,226,961.90 116
65 07203 6.110% ACT/360 4,100,000.00 4,091,282.90 118
66 92123 6.750% ACT/360 4,100,000.00 4,080,090.60 114
67 30549 6.300% ACT/360 3,500,000.00 3,477,859.25 113
68 48430 6.250% ACT/360 3,330,000.00 3,320,471.38 117
69 30161 7.610% ACT/360 3,200,000.00 3,178,895.13 110
70 37849 5.860% ACT/360 3,000,000.00 2,990,752.62 117
71 32211 7.460% ACT/360 2,792,000.00 2,775,122.02 111
72 38134 6.100% ACT/360 2,740,000.00 2,729,685.57 116
73 28083 7.610% ACT/360 2,615,000.00 2,584,615.55 109
74 27106 7.610% ACT/360 2,443,000.00 2,414,614.12 109
75 27055 6.740% ACT/360 2,400,000.00 2,386,178.01 113
76 50131 6.250% ACT/360 2,040,000.00 2,028,941.71 116
77 70058 8.015% ACT/360 1,900,000.00 1,887,748.84 109
78 28601 7.610% ACT/360 1,772,000.00 1,751,410.64 109
79 27534 7.811% ACT/360 1,700,000.00 1,671,096.71 110
80 28655 7.610% ACT/360 1,670,000.00 1,650,595.77 109
81 32966 7.740% ACT/360 1,600,000.00 1,580,309.81 107
82 34974 7.100% ACT/360 1,225,328.00 1,220,591.33 115
83 78410 7.000% ACT/360 1,200,000.00 1,192,687.93 112
84 10021 5.183% ACT/360 100,382,899.00 100,382,899.00 119
85 77030 6.250% ACT/360 33,500,000.00 33,345,304.24 115
86 75201 7.220% ACT/360 27,000,000.00 27,000,000.00 97
87 19104 6.150% ACT/360 20,500,000.00 20,423,625.60 116
88 33027 6.050% ACT/360 11,340,000.00 11,340,000.00 114
89 85253 7.000% ACT/360 8,775,000.00 8,721,530.57 112
90 48126 5.950% ACT/360 6,510,000.00 6,510,000.00 102
91 34474 6.150% ACT/360 5,760,000.00 5,732,853.05 79
92 31210 5.610% ACT/360 5,560,000.00 5,560,000.00 116
93 11377 6.650% ACT/360 4,275,000.00 4,249,897.13 113
94 22901 7.000% ACT/360 3,110,000.00 3,083,885.63 113
95 07753 6.400% ACT/360 2,480,000.00 2,473,105.49 117
96 02128 5.430% ACT/360 15,000,000.00 14,964,367.08 82
97 90755 6.500% ACT/360 13,600,000.00 13,552,915.07 116
98 48182 6.000% ACT/360 12,100,000.00 11,980,030.18 113
99 92075 5.900% ACT/360 4,650,000.00 4,635,774.89 117
100 86001 6.433% ACT/360 2,775,000.00 2,760,404.06 116
101.1 55344
101.2 55416
101.3 55346
101.4 55432
101.5 87110
101.6 87111
101.7 02459
101.8 33431
101.9 87120
101.1 55439
101.11 55306
101.12 55431
101.13 33602
101.14 55429
101.15 55305
101 7.476% ACT/360 25,500,000.00 25,500,000.00 119
102 85705 5.706% ACT/360 3,400,000.00 3,392,279.14 118
103 84405 5.900% ACT/360 2,830,000.00 2,818,899.10 116
104 88047 5.960% ACT/360 2,200,000.00 2,193,227.20 118
105 85219 6.008% ACT/360 1,775,000.00 1,771,162.95 118
106 77521 5.935% ACT/360 1,660,000.00 1,653,535.06 116
107 33801 5.863% ACT/360 1,600,000.00 1,593,676.18 56
108.1 28134
108.2 28210
108 5.710% ACT/360 9,700,000.00 9,655,890.38 117
109 07001 6.880% ACT/360 4,300,000.00 4,258,373.74 52
110 28215 5.720% ACT/360 3,500,000.00 3,484,108.28 117
111 78745 6.150% ACT/360 1,770,000.00 1,757,699.26 115
112 95838 5.704% ACT/360 1,733,000.00 1,727,476.34 118
----------------
1,032,766,115.67
Admini- Primary Master
Sequence Stated Maturity Monthly strative Servicing Servicing
Number Date Due Date Payment Fee Rate Fee Rate Fee Rate Ownership Interest Crossed
-------- --------------- -------- ---------- -------- --------- --------- ---------------------- ----------------
1 02/01/13 1st 150,904.11 0.14200% 0.10000% 0.1400% Fee Simple No
2 10/01/12 1st 147,772.13 0.14200% 0.10000% 0.1400% Fee Simple No
3 08/01/09 1st 123,167.86 0.14200% 0.10000% 0.1400% Fee Simple No
4 03/01/10 1st 0.08200% 0.04000% 0.0800% Fee Simple No
5 08/01/09 1st 109,368.97 0.14200% 0.10000% 0.1400% Fee Simple No
6 06/01/09 1st 105,136.03 0.14200% 0.10000% 0.1400% Fee Simple No
7 09/01/13 1st 85,356.40 0.14200% 0.10000% 0.1400% Fee Simple No
8 08/01/09 1st 85,348.68 0.14200% 0.10000% 0.1400% Fee Simple No
9 03/01/08 1st 64,684.27 0.14200% 0.10000% 0.1400% Fee Simple No
10 10/01/08 1st 78,657.26 0.14200% 0.10000% 0.1400% Fee Simple No
11 02/01/13 1st 53,741.73 0.14200% 0.10000% 0.1400% Fee Simple No
12 12/01/12 1st 50,961.79 0.14200% 0.10000% 0.1400% Fee Simple No
13 01/01/13 1st 43,200.65 0.09200% 0.05000% 0.0900% Fee Simple No
14 01/01/13 1st 42,632.34 0.12200% 0.08000% 0.1200% Fee Simple No
15 02/01/13 1st 37,061.03 0.14200% 0.10000% 0.1400% Fee Simple No
16 10/01/11 1st 45,722.67 0.14200% 0.10000% 0.1400% Fee Simple No
17 01/01/13 1st 34,534.06 0.12200% 0.08000% 0.1200% Fee Simple No
18 01/01/13 1st 32,096.51 0.14200% 0.10000% 0.1400% Fee Simple No
19 02/01/13 1st 14,723.00 0.09200% 0.05000% 0.0900% Fee Simple Yes(BACM 03-1-Q)
20 02/01/13 1st 13,545.16 0.09200% 0.05000% 0.0900% Fee Simple Yes(BACM 03-1-Q)
21 02/01/08 1st 25,244.34 0.09200% 0.05000% 0.0900% Fee Simple No
22 01/01/13 1st 25,081.04 0.14200% 0.10000% 0.1400% Fee Simple No
23 06/01/07 1st 31,147.96 0.14200% 0.10000% 0.1400% Fee Simple No
24 01/01/13 1st 24,984.47 0.10200% 0.06000% 0.1000% Fee Simple No
25 10/01/10 1st 23,982.02 0.09200% 0.05000% 0.0900% Fee Simple No
26 12/01/12 1st 23,260.10 0.13200% 0.09000% 0.1300% Fee Simple No
27 03/01/13 1st 20,460.74 0.09200% 0.05000% 0.0900% Fee Simple No
28 03/01/13 1st 19,327.13 0.14200% 0.10000% 0.1400% Fee Simple No
29 08/01/12 1st 21,490.31 0.14200% 0.10000% 0.1400% Fee Simple No
30 10/01/12 1st 20,503.38 0.14200% 0.10000% 0.1400% Fee Simple No
31 12/01/12 1st 20,731.83 0.13200% 0.09000% 0.1300% Fee Simple No
32 02/01/08 1st 15,359.73 0.09200% 0.05000% 0.0900% Fee Simple No
33 02/01/08 1st 15,155.12 0.09200% 0.05000% 0.0900% Fee Simple No
34 12/01/12 1st 13,422.18 0.11200% 0.07000% 0.1100% Fee Simple No
35 12/01/12 1st 13,334.64 0.11200% 0.07000% 0.1100% Fee Simple No
36 02/01/08 1st 11,245.95 0.09200% 0.05000% 0.0900% Fee Simple No
37 11/01/12 1st 11,621.64 0.14200% 0.10000% 0.1400% Fee Simple No
38 02/01/08 1st 9,584.56 0.09200% 0.05000% 0.0900% Fee Simple No
39 02/01/08 1st 7,485.02 0.09200% 0.05000% 0.0900% Fee Simple No
40 11/01/12 1st 8,698.07 0.14200% 0.10000% 0.1400% Fee Simple No
41 02/01/08 1st 7,424.35 0.09200% 0.05000% 0.0900% Fee Simple No
42 02/01/13 1st 7,236.95 0.09200% 0.05000% 0.0900% Fee Simple No
43 03/01/13 1st 555,329.12 0.06200% 0.02000% 0.0600% Fee Simple No
44 07/01/12 1st 222,772.76 0.14200% 0.10000% 0.1400% Fee Simple No
45 02/01/13 1st 177,215.46 0.14200% 0.10000% 0.1400% Fee Simple No
46 01/01/11 1st 207,958.78 0.14200% 0.10000% 0.1400% Fee Simple No
47 08/01/12 1st 179,631.67 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
48 05/01/12 1st 187,433.06 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
49 11/01/12 1st 63,582.52 0.14200% 0.10000% 0.1400% Fee Simple No
50 06/01/12 1st 55,223.50 0.14200% 0.10000% 0.1400% Fee Simple No
51 01/01/12 1st 55,531.25 0.14200% 0.10000% 0.1400% Fee Simple No
52 10/01/12 1st 54,266.78 0.09200% 0.05000% 0.0900% Fee Simple No
53 07/01/12 1st 50,655.51 0.10200% 0.06000% 0.1000% Fee Simple No
54 11/01/12 1st 44,014.84 0.14200% 0.10000% 0.1400% Fee Simple No
55 11/01/12 1st 45,176.58 0.14200% 0.10000% 0.1400% Fee Simple No
56 10/01/12 1st 44,199.51 0.14200% 0.10000% 0.1400% Fee Simple No
57 07/01/12 1st 41,980.93 0.14200% 0.10000% 0.1400% Fee Simple No
58 12/01/12 1st 0.14200% 0.10000% 0.1400% Fee Simple No
59 07/01/12 1st 36,937.81 0.14200% 0.10000% 0.1400% Fee Simple No
60 11/01/12 1st 33,325.52 0.14200% 0.10000% 0.1400% Fee Simple No
61 05/01/12 1st 32,851.61 0.14200% 0.10000% 0.1400% Fee Simple No
62 05/01/12 1st 32,394.17 0.14200% 0.10000% 0.1400% Fee Simple No
63 09/01/12 1st 29,149.61 0.14200% 0.10000% 0.1400% Fee Simple No
64 12/01/12 1st 28,035.95 0.14200% 0.10000% 0.1400% Fee Simple No
65 02/01/13 1st 24,872.28 0.14200% 0.10000% 0.1400% Fee Simple No
66 10/01/12 1st 26,592.52 0.14200% 0.10000% 0.1400% Fee Simple No
67 09/01/12 1st 21,664.05 0.14200% 0.10000% 0.1400% Fee Simple No
68 01/01/13 1st 20,503.38 0.14200% 0.10000% 0.1400% Fee Simple No
69 06/01/12 1st 22,616.39 0.14200% 0.10000% 0.1400% Fee Simple No
70 01/01/13 1st 17,717.38 0.14200% 0.10000% 0.1400% Fee Simple No
71 07/01/12 1st 19,445.65 0.14200% 0.10000% 0.1400% Fee Simple No
72 12/01/12 1st 16,604.26 0.11200% 0.07000% 0.1100% Fee Simple No
73 05/01/12 1st 19,512.11 0.14200% 0.10000% 0.1400% Fee Simple No
74 05/01/12 1st 18,228.71 0.14200% 0.10000% 0.1400% Fee Simple No
75 09/01/12 1st 15,550.40 0.11200% 0.07000% 0.1100% Fee Simple No
76 12/01/12 1st 13,457.26 0.14200% 0.10000% 0.1400% Fee Simple No
77 05/01/12 1st 13,961.40 0.07200% 0.03000% 0.0700% Fee Simple No
78 05/01/12 1st 13,221.97 0.14200% 0.10000% 0.1400% Fee Simple No
79 06/01/12 1st 14,020.17 0.14200% 0.10000% 0.1400% Fee Simple No
80 05/01/12 1st 12,460.89 0.14200% 0.10000% 0.1400% Fee Simple No
81 03/01/12 1st 11,451.54 0.14200% 0.10000% 0.1400% Fee Simple No
82 11/01/12 1st 8,234.60 0.14200% 0.10000% 0.1400% Fee Simple No
83 08/01/12 1st 7,983.63 0.14200% 0.10000% 0.1400% Fee Simple No
84 03/01/13 1st 597,603.44 0.14200% 0.10000% 0.1400% Fee Simple No
85 11/01/12 1st 206,265.26 0.14200% 0.10000% 0.1400% Fee Simple No
86 05/01/11 1st 183,638.51 0.09200% 0.05000% 0.0900% Fee Simple No
87 12/01/12 1st 124,891.77 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
88 10/01/12 1st 78,665.36 0.14200% 0.10000% 0.1400% Fee Simple No
89 08/01/12 1st 58,380.29 0.09200% 0.05000% 0.0900% Fee Simple No
90 10/01/11 1st 46,452.07 0.14200% 0.10000% 0.1400% Fee Simple No
91 11/01/09 1st 35,091.54 0.14200% 0.10000% 0.1400% Fee Simple No
92 12/01/12 1st 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
93 09/01/12 1st 27,444.00 0.14200% 0.10000% 0.1400% Fee Simple No
94 09/01/12 1st 21,980.83 0.12200% 0.08000% 0.1200% Fee Simple No
95 01/01/13 1st 15,512.55 0.14200% 0.10000% 0.1400% Fee Simple No
96 02/01/10 1st 84,510.74 0.14200% 0.10000% 0.1400% Fee Simple No
97 12/01/12 1st 85,961.25 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
98 09/01/12 1st 77,960.47 0.14200% 0.10000% 0.1400% Fee Simple No
99 01/01/13 1st 27,580.85 0.10200% 0.06000% 0.1000% Fee Simple No
100 12/01/12 1st 18,620.99 0.09200% 0.05000% 0.0900% Fee Simple / Leasehold No
101.1
101.2
101.3
101.4
101.5
101.6
101.7
101.8
101.9
101.1
101.11
101.12
101.13
101.14
101.15
101 03/01/13 1st 177,881.38 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
102 02/01/13 1st 19,746.54 0.13200% 0.09000% 0.1300% Fee Simple No
103 12/01/12 1st 16,785.76 0.14200% 0.10000% 0.1400% Fee Simple No
104 02/01/13 1st 14,120.89 0.14200% 0.10000% 0.1400% Fee Simple No
105 02/01/13 1st 10,651.15 0.14200% 0.10000% 0.1400% Fee Simple No
106 12/01/12 1st 9,883.27 0.14200% 0.10000% 0.1400% Fee Simple No
107 12/01/07 1st 9,452.34 0.14200% 0.10000% 0.1400% Fee Simple No
108.1
108.2
108 01/01/13 1st 60,789.07 0.14200% 0.10000% 0.1400% Fee Simple No
109 08/01/07 1st 30,063.13 0.14200% 0.10000% 0.1400% Fee Simple / Leasehold No
110 01/01/13 1st 21,955.32 0.14200% 0.10000% 0.1400% Fee Simple No
111 11/01/12 1st 11,566.98 0.14200% 0.10000% 0.1400% Fee Simple No
112 02/01/13 1st 10,854.29 0.09200% 0.05000% 0.0900% Fee Simple No
Original
Sequence Amortization Grace
Number (months) Period
-------- ------------ ------
1 360 10
2 360 10
3 321 10
4 10
5 321 10
6 360 10
7 360 10
8 321 10
9 360 10
10 306 10
11 360 10
12 360 10
13 360 5
14 348 10
15 360 10
16 309 10
17 348 10
18 360 10
19 360 5
20 360 5
21 360 10
22 360 10
23 336 10
24 360 10
25 360 5
26 360 5
27 360 5
28 360 10
29 360 10
30 360 15
31 360 5
32 360 10
33 360 10
34 360 10
35 360 10
36 360 10
37 300 5
38 360 10
39 360 10
40 300 5
41 360 10
42 360 5
43 360 5
44 360 10
45 360 10
46 360 10
47 360 10
48 360 10
49 360 10
50 360 10
51 360 10
52 300 10
53 360 10
54 360 10
55 300 10
56 360 10
57 360 10
58 10
59 360 10
60 360 10
61 360 10
62 360 10
63 360 10
64 300 10
65 360 10
66 360 10
67 360 10
68 360 10
69 360 10
70 360 10
71 360 10
72 360 10
73 300 10
74 300 10
75 360 10
76 300 10
77 360 5
78 300 10
79 240 5
80 300 10
81 360 10
82 360 10
83 360 10
84 300 5
85 360 10
86 360 10
87 360 10
88 258 10
89 360 10
90 240 10
91 360 10
92 10
93 360 10
94 300 5
95 360 10
96 360 10
97 360 10
98 300 10
99 360 10
100 300 5
101.1
101.2
101.3
101.4
101.5
101.6
101.7
101.8
101.9
101.1
101.11
101.12
101.13
101.14
101.15
101 360 0
102 360 5
103 360 5
104 300 5
105 360 5
106 360 5
107 360 5
108.1
108.2
108 300 10
109 300 10
110 300 10
111 300 5
112 300 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 respective Due Dates for the Mortgage Loans in April 2003.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances.
Subject to the completion of all missing information (including, without
limitation, the names of assignees and endorsees and missing recording
information) in all instruments of transfer or assignment and endorsements, and
the completion of all recording and filing contemplated hereby and by the
Pooling and Servicing Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in April 2003, without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in April 2003.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), has been
delivered to the Purchaser; and (c) either: (i) no such Environmental Report, if
any, provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is 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 as have been required by the
applicable governmental regulatory authority, (G) the related Mortgaged Property
is insured under a policy of insurance, subject to certain per occurrence and
aggregate limits and a deductible, against certain losses arising from such
circumstances and conditions or (H) a responsible party provided a guaranty or
indemnity to the related Borrower to cover the costs of any required
investigation, testing, monitoring or remediation. To the Seller's knowledge,
there are no significant or material circumstances or conditions with respect to
such Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Borrower questionnaire delivered to Seller at the issue of
any related environmental insurance policy, if applicable, that render such
Mortgaged Property in material violation of any applicable environmental laws.
The Mortgage or another loan document for each Mortgage Loan encumbering the
Mortgaged Property requires the related Borrower to comply with all applicable
federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset or rescission available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements that would deny the mortgagee
the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least six (6) months (or a
specified dollar amount which, in the reasonable judgement of the Seller, will
cover no less than six months of rental income). If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as a special flood hazard area
(Zone A or Zone V) (an "SFH Area"), and flood insurance was available, a flood
insurance policy meeting the requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the minimum amount required, under the terms of coverage, to compensate for
any damage or loss on a replacement basis, (2) the outstanding principal balance
of such Mortgage Loan, and (3) the maximum amount of insurance available under
the applicable National Flood Insurance Administration Program. All such hazard
and flood insurance policies contain a standard mortgagee clause for the benefit
of the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. With respect to each Mortgage Loan, the related
Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below).
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease either (i) has an original term which extends not
less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior
to the 10th anniversary of the Stated Maturity Date of such Mortgage
Loan and has extension options that are exercisable by the lender
upon its taking possession of the Borrower's leasehold interest and
that, if exercised, would cause the term of such Ground Lease to
extend not less than twenty (20) years beyond the Stated Maturity
Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a default of the
lessee under such Ground Lease following notice thereof from the
lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury regulation
section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest.
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 except that for and A/B Mortgage Loan, the
related Companion Loan is secured by the related Mortgage. To the Seller's
knowledge and except for cases involving A/B Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. 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 or (b)
the payment of a release price and prepayment consideration in connection
therewith; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (a) no earlier than two
years following the Closing Date and (b) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan except
for the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule II.
34. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy, then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such
policy the "pollution conditions" (as defined in such policy)
identified in any environmental reports related to such Mortgaged
Property which are in the Seller's possession or are otherwise known
to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's
possession related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
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 Regulation 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, no Person has been granted or conveyed the right to service any
Mortgage Loan or receive any consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage Loans by
the Seller or a sub-servicer retained by the Seller is legal, proper and prudent
in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed. Notwithstanding any of the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of UCC Financing Statements are required in order to effect such
perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied either (A) the requirements of the
"Uniform Standards of Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal Foundation based solely upon the
related appraiser's representation in the related appraisal or in a related
supplemental letter that the related appraisal satisfies such requirements, or
(B) the appraisal guidelines set forth in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (as amended).
SCHEDULE IIA TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
BETWEEN BANK OF AMERICA, N.A. AND
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
EXCEPTIONS TO SCHEDULE II REPRESENTATIONS AND WARRANTIES
REPRESENTATION 2
Ownership of Mortgage Loans.
----------------------------
00000 - Xxxxxxxxxxxxx Xxxxxx,
Xxxxxxx, XX The title policy reflects that the
related Borrower only owns an undivided
50% interest in Tracts II and III, which
are air rights parcels encumbered by the
related Mortgage. The other 50% owners
of the parcel International Center
Development II and III (which are
affiliates of the Borrower) have granted
the related Borrower easement rights
that give the related Borrower full use
of the parcel.
REPRESENTATION 4
Lien; Valid Assignment.
-----------------------
00000 - XXXX Xxxxxx/Xxxxxxxxxxxx
Xxxxxxxxx - Xxxxx, XX The Mortgage Loan is subject to an
indenture recorded against the Mortgaged
Property which relates to the bonds
issued in connection with the ground
lease and the borrower owns the entire
interest in the bonds. The mortgagee is
to hold the subject bonds from the bond
trustee as excess collateral.
00000 - XXX Xxxxxxxx - Xxxxxxxx, XX The Mortgage Loan is subject to an
indenture between Ford Motor Land
Development Corporation ("Ford") and the
Borrower. The Borrower has granted Ford,
among other things, rights of first
refusal to purchase or lease the related
Mortgaged Property and rights of first
offer, each as more fully set forth in
the indenture (the "Indenture"). Ford is
also given the right to terminate the
Borrower's estate upon the occurrence of
certain events; thereafter, title to the
related Mortgaged Property shall revert
to Ford (subject to payment of
compensation by Ford to the Borrower in
the amount equal to the market value of
the Premises established in accordance
with the provisions of the Indenture).
Pursuant to a letter agreement dated
September 13, 2002, executed by Xxxx,
Xxxx has agreed that prior to prepayment
of the Mortgage Loan in full, Ford shall
only terminate the estate if Ford
complies with certain conditions,
including, but not limited to, paying
the amounts owed for the related
Mortgaged Property directly to the
Seller, and taking the estate subject
to, but in no way assuming, the Mortgage
Loan. Ford has also granted the Seller
certain notice and cure rights and the
right to enter into a new Indenture on
substantially the same terms as the
Indenture. Ford has agreed the right of
first refusal shall not apply to a
foreclosure of the related Mortgaged
Property by the Seller or any deed in
lieu. If Ford exercises its rights to
purchase the related Mortgaged Property,
the Mortgage Loan is recourse to the
related Borrower and borrower principal
for losses incurred by the Seller to the
extent the purchase price paid by Ford
is less than all amounts due under the
loan documents.
REPRESENTATION 7
Casualty; Condemnation; Encroachments.
--------------------------------------
56783 - Wellbridge Portfolio -
Brooklyn Center, MN One of the related Mortgaged Properties,
located at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxxxx, includes a
parking lot which encroaches upon a
fifteen (15) foot set-back line by one
(1) foot.
REPRESENTATION 8
Title Insurance.
----------------
00000 - Xxxxxxxxxxxxx Xxxxxx -
Xxxxxxx, XX The Title Policy expressly excepts from
coverage any shortages in area.
REPRESENTATION 12
Environmental Conditions.
-------------------------
56063 - Walgreen's - Taylor, MI The Environmental Site Assessment
indicates that an adjacent property
located east of the Mortgaged Property
is an active gas station with a
documented fuel release incident in
1993. A review of Michigan Department of
Environmental Quality ("MDEQ") records
indicates the petroleum impacts at such
gas station may have migrated off-site
in the direction of the Mortgaged
Property. It has been recommended that
Borrower notify the MDEQ of their
concern that such gas station may impact
the Mortgaged Property; however, the
loan file does not indicate if Borrower
has so notified MDEQ. Note that the
related loan documents provide that the
related Borrower would be required to
obtain environmental insurance on the
Mortgaged Property should such insurance
be required by an investor or rating
agency in connection with a
securitization of the Mortgage Loan.
00000 - XXX 0xx Xxxxxx -
Xxx Xxxx, XX The Environmental Site Assessment dated
August 30, 2002 stated that an adjacent
property contained a leaking registered
storage tank. The related Borrower
sought regulatory closure of the case
and expected a no further action letter
to be issued but none was issued as of
closing date of the loan agreement. The
loan file contains a letter agreement
wherein the related Borrower agrees to
provide the above-referenced no further
action letter post closing. The Title
Policy has an environmental protection
lien endorsement.
REPRESENTATION 14
Insurance.
----------
57081 - Sotheby's - New York, NY The terms of the Sotheby's Lease (as
defined below) shall control the
disbursement of the net insurance
proceeds following a casualty or
condemnation provided that (i) the
Sotheby's Lease is in full force and
effect; (ii) no event of default
resulting from non-payment of rent under
the Sotheby's Lease has occurred and is
continuing; (iii) no event of default
under the related loan documents has
occurred and is continuing; (iv) Seller,
as fee mortgagee under the Sotheby's
Lease is paid the net proceeds; and (v)
each of the related Borrower and
Sotheby's, Inc. ("Sotheby's") continues
to comply with all applicable terms and
conditions of the Sotheby's Lease
related to the disbursement of said Net
Proceeds.
"Sotheby's Lease" shall mean,
collectively, (i) that certain lease by
and among Borrower and Sotheby's, (ii)
that certain Guaranty of Lease executed
by Sotheby's Holdings, Inc. and (iii)
that certain Subordination,
Non-Disturbance and Attornment Agreement
by and among the Seller and Sotheby's.
00000 - Xxxxxxx Xxxxxx -
Xxxxx Xxxxxxxxx, XX The related Borrower is required to
maintain 100% of the replacement cost of
the improvements located on the related
Mortgaged Property (the "Replacement
Cost"); however, the related loan
documents do not address the concept of
the lesser of Replacement Costs and the
outstanding principal balance of such
Mortgage Loan.
0000 - Xxxx Xxxxxx XXX -
Xxxxxxx, XX The related Borrower is only required to
obtain an 80% co-insurance endorsement.
00000 - Xxxxxxx Xxxxxx Xxxxx -
Xxxxxxxxxx, XX Certain tenants may self-insure.
In addition, the related Borrower holds
a leasehold interest in the related
Mortgaged Property; however, the related
loan documents do not address if the
application of such proceeds will be
subject to the terms of the related
Ground Lease which says that the
insurance proceeds are to be distributed
pursuant to the terms of the Mortgage.
00000 - Xxxxx Xxxxxx Xxxx -
Xxxxxxx, XX The related Borrower is required to
maintain business interruption insurance
"to cover a period acceptable to the
Seller in its reasonable discretion";
however, pursuant to the Pooling and
Servicing Agreement, the Master Servicer
will require not less than twelve (12)
months of business interruption
insurance for the related Mortgage Loan.
00000 - XXXX Xxxxxx/Xxxxxxxxxxxx
Xxxxxxxxx - Xxxxx, XX The loan documents provide that so long
as IKON is not in default under the
provisions of its lease, casualty and
insurance proceeds shall be used to
restore the Mortgaged Property in
accordance with the provisions of IKON's
lease.
56063 - Walgreen's - Taylor, MI Business interruption insurance is
required to be provided for a period
acceptable to the Seller; however,
pursuant to the Pooling and Servicing
Agreement, the Servicer will require not
less than twelve (12) months of business
interruption insurance for the related
Mortgage Loan.
4723 - Steeplechase Apts Phase II -
Brandon, FL Business interruption insurance has no
specific time period. Pursuant to the
Pooling and Servicing Agreement, the
Servicer will require not less than
twelve (12) months of business
interruption insurance for the related
Mortgage Loan.
REPRESENTATION 17
Local Law Compliance.
---------------------
56474 - XXX 0xx Xxxxxx -
Xxx Xxxx, XX The Planning and Zoning Report states
that the use of the related Mortgaged
Property is legal and conforming, but
the Certificate of Occupancy ("COO") was
not issued because the related Mortgaged
Property was not complete. A COO may
have been issued because the underwriter
required an escrow if COO was not issued
and no such escrow is on the closing
statement. However the loan file
contains only a temporary COO which
expires on May 7, 2003.
56783 - Wellbridge Portfolio -
Xxxxxxxx Xxxxxx, XX -
Xxxx Xxxxxxx, XX With respect to one of the related
Mortgaged Properties located at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxx,
Xxxxxxxxx, a parking lot encroaches upon
a fifteen (15) foot set-back line by one
(1) foot, and is therefore
nonconforming.
With respect to one of the related
Mortgaged Properties located at 0000
Xxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx, the
Planning and Zoning Report states that
such Mortgaged Property is conforming if
the parking lot was restriped to include
eight (8) additional spaces, and it has
not been restriped as of the date
hereof.
XXXXXXXXXXXXXX 00
Xxxxxxxxx Xxxxxx Only.
----------------------
56416 Lackland Storage - Avenel, NJ (g) Exception: term expires 4/29/2027.
(k) Exception: While mortgagee's consent
is required for an amendment to the
Ground Lease, the Ground Lease does not
state that an amendment made without
mortgagee's consent is not binding on
mortgagee.
00000 Xxxxxxx Xxxxxx - Xxxxxxxxxx, XX (c) Exception: related Borrower may not
assign the Ground Lease without Lessor's
consent. However, if a leasehold
mortgagee acquires related Borrower's
interest by foreclosure or a deed in
lieu thereof, it may assign the Ground
Lease.
(g) Exception: term ends 1/31/2032.
(k) Exception: While mortgagee's consent
is required for an amendment to the
Ground Lease, the Ground Lease does not
state that an amendment made without
mortgagee's consent is not binding on
mortgagee.
56148 - Huntington - Monrovia, CA (e) Exception: The Ground Lease requires
lessor to give any default notice to
lessee's mortgagee, but the Ground Lease
does not provide that notice of
termination is not effective against
mortgagee unless a copy of the notice
has been delivered to mortgagee.
(g) Exception: initial term expires
4/1/2013. There is one 25-year renewal
term.
56826 - 0000 Xxxxxx Xxxxxx -
Xxxxxxxxxxxx, XX (g) Exception: term ends 4/30/2029.
(i) Per Ground Lease, the terms of the
mortgage govern the control, use, and
payment of insurance proceeds.
00000 - Xxxxxx Xxxxx-Xxxxxx Xxxx
- Xxxxxx Xxxx, XX (h) Exception: Ground Lease provides
that if the Ground Lease terminates as a
result of a default by lessee, the
Seller can enter into a new lease. It
does not state that the Seller has the
option to obtain a new lease upon
termination of the Ground Lease for any
reason, including bankruptcy of the
lessee.
00000 - XXXX Xxxxxx Xxxxxxxx
- Xxxxx, XX IKON, as lessee, entered into a lease
with the Xxxxx-Xxxx Industrial Authority
on 12/1/1996 ("Lease A").
(a) Exception: Lease A is recorded but
its amendments are not. Lease A does not
discuss lessee's right to mortgage its
interest, but in a ground lessor
estoppel, lessor consented to the loan
with Bank of America.
(g) Exception: The term of Lease A
expires 10/1/2022, provided, however,
that the fee interest shall be
transferred to the related Borrower upon
the expiration of Lease A.
(i) Per Lease A, the terms of the loan
agreement govern with respect to
casualties.
00000 - Xxxxxxxxxx Xxxxxxxxx -
Xxxx Xxxxx, XX (c) and (j) - With respect to one of the
Mortgaged Properties which is located in
Boca Raton, Florida, except for an
assignment or sublet to a parent,
subsidiary or affiliate company, the
tenant may only assign or sublet the
lease if approved by the landlord, which
approval may be withheld. The transfer
of shares of stock or a partnership
interest shall be deemed an assignment
requiring the consent of Landlord.
REPRESENTATION 23
Other Mortgage Liens.
---------------------
00000 - Xxxxx Xxxxxxxxxx Xxxx Xxxx -
Xxxxxx, XX E. Xxxxxx Xxxxx ("Xxxxx") holds a
subordinate loan secured by the
Mortgaged Property in the original
principal balance equal to $1,500,000.00
(the "Subordinate Loan"). The lender and
Xxxxx entered into a Subordination and
Standstill Agreement dated as of the
closing date of the mortgage loan which
subordinates the priority and payment of
the Subordinate Loan to the Mortgage
Loan.
REPRESENTATION 28
Releases of Mortgaged Properties.
---------------------------------
56570 - 0000 Xxxxxxxx Xxxx. -
Xxxxxxx, XX Article 21 of the loan agreement permits
the release of a 0.469 acre portion of
the Mortgaged Property upon the
satisfaction of certain conditions
contained in the loan agreement.
No value was attributed to such 0.469
acre portion of the Mortgaged Property
by the appraiser.
REPRESENTATION 29
Defeasance.
-----------
56826 - 0000 Xxxxxx Xxxxxx -
Xxxxxxxxxxxx, XX The REMIC prohibition period expires on
the earlier to occur of the date which
is (i) two (2) years following the
Closing Date or (ii) the four (4) year
period commencing with the loan closing
date. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
00000 - Xxxxxx Xxxxxx -
Xxxxx Xxxxxxxxx, XX The REMIC prohibition period expires on
the earlier to occur of the date which
is (i) two (2) years following the
Closing Date or (ii) the four (4) year
period commencing with the loan closing
date. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
00000 - Xxxxxx Xxxxxxxxxx -
Xxx Xxxxxxx, XX The REMIC prohibition period expires on
the earlier to occur of the date which
is (i) two (2) years following the
Closing Date or (ii) the four (4) year
period commencing with the loan closing
date. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
00000 - 0000 Xxxxxxxx Xxxx. -
Xxxxxxx, XX The REMIC prohibition period expires on
the earlier to occur of the date which
is (i) two (2) years following the
Closing Date or (ii) the three (3) year
period commencing with the loan closing
date. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
53370 - CLK2 St. Xxxxxxxx -
Harvey, LA The related loan agreement permits
defeasance upon the earlier of the
expiration of the REMIC Prohibition
Period or 4 years from the closing date.
The REMIC Prohibition Period is the
2-year period beginning with the start
up day for the A note and for the B
note. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
00000 - XXX0 Xxxxxxx Xxxxxx -
Xxxxxxxxxx, XX The related loan agreement permits
defeasance upon the earlier of the
expiration of the REMIC Prohibition
Period or 4 years from the closing date.
The REMIC Prohibition Period is the
2-year period beginning with the start
up day for the A note and for the B
note. Accordingly, the related Borrower
is thus effectively prohibited from
defeasing such Mortgage Loan during the
REMIC prohibition period.
55798 - CLK - The Courts at
Waterford - The related loan agreement permits
defeasance upon the earlier of the
expiration of the REMIC Prohibition
Period or 4 years from the related loan
closing date. Accordingly, the related
Borrower is thus effectively prohibited
from defeasing such Mortgage Loan during
the REMIC prohibition period.
REPRESENTATION 34.
Due-on-Sale.
------------
00000 - XXXX Xxxxxx/Xxxxxxxxxxxx
Xxxxxxxxx - Xxxxx, XX The transfer provisions in the loan
agreement permit, under certain
circumstances, the transfer of more than
a controlling interest in the related
Borrower without the Seller's consent.
REPRESENTATION 37
Tax Parcels.
------------
00000 - Xxxx'x xx Xxxxxxxxxxxx
Xxxxxx - Xxxxxxxx, XX The mortgaged property is not assessed
as a separate tax parcel. The loan
documents require the mortgagor to pay
all taxes assessed against the entire
parcel until the mortgaged property
constitutes and is assessed as a
separate tax lot.
00000 - 0000 Xxxxxxxx Xxxx. -
Xxxxxxx, XX The mortgaged property is not assessed
as a separate tax parcel. The loan
documents require the mortgagor to pay
all taxes assessed against the entire
parcel until the mortgaged property
constitutes and is assessed as a
separate tax lot. In connection with the
closing of the Mortgage Loan, related
Borrower requested that the appropriate
state agency separate the tax parcels.
00000 - XXXX Xxxxxx/Xxxxxxxxxxxx
Xxxxxxxxx - Xxxxx, XX The loan agreement provides that Tax Lot
4 is assessed in the same tax lot as an
adjoining piece of property which is not
included as the Mortgaged Property.
However, the loan agreement provides
that if (i) the adjoining parcel becomes
subject to a tax, or (ii) the Mortgaged
Property is sold and the Mortgage Loan
assumed in accordance with the
provisions of Section 7.5 of the loan
agreement, then the related Borrower is
required to use its best efforts to have
Tax Lot 4 assessed as a separate parcel.
REPRESENTATION 43
Recourse.
---------
00000 - Xxxxxxxxxxxxx Xxxxxx -
Xxxxxxx, XX Recourse liability with respect to
violations of "environmental laws" (as
defined under the loan documents) is
limited to the extent that such
violation is recovered or recoverable
under any environmental insurance policy
delivered to the Seller by related
Borrower in connection with the Mortgage
Loan.
00000 - Xxxxxxx Xxxxxx Xxxxx -
Xxxxxxxxxx, XX The related Borrower's recourse
liability (i) for intentional
misrepresentations is limited to an
intentional misrepresentation with
respect to a material fact and (ii) for
gross negligence and willful misconduct
is only with respect to the Mortgaged
Property.
00000 - Xxxxx Xxxxxx Xxxx -
Xxxxxxx, XX The recourse carveout for fraud is
limited such that fraud or intentional
misrepresentation by unaffiliated agent
or contractor of which related Borrower
had no knowledge does not trigger
recourse.
56826 - 0000 Xxxxxx Xxxxxx -
Xxxxxxxxxxxx, XX University City Science Center ("USC"),
and Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") are
the indemnitors for this Mortgage Loan.
USC is not liable under the fraud
carveout if the intentional
misrepresentation or fraud (i) was made
by Xxxxxxxx, (ii) does not involve the
Mortgaged Property, and (iii) USC has no
knowledge of such fraud or
misrepresentation. Xxxxxxxx is liable
under the fraud carveout only if the
intentional misrepresentation or fraud
(i) was made by USC, (ii) does not
involve the Mortgaged Property, and
(iii) Xxxxxxxx has no knowledge of such
fraud or misrepresentation.
55798 - CLK - The Courts at
Waterford - Chattanooga, TN Recourse liability for fraud is limited
to execution of the loan documents and
other instruments provided to the Seller
throughout the term of the Mortgage
Loan, Indemnitor's liability for any
fraud/misrepresentation by the other
Indemnitor is limited.
00000 - Xxxxx Xxxxxxx Xxxxxxxx
Xxxxxx - Xxxxxx, XX Xxxxxxx X. Xxxxxxxx'x liability as
borrower principal is limited to
$1,325,000.
SCHEDULE IIA TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
BETWEEN BANK OF AMERICA, N.A. AND
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE MORTGAGE LOANS PURCHASED FROM BRIDGER
---------------------------------------------------------
SCHEDULE II-6 - MORTGAGE STATUS; WAIVERS AND MODIFICATIONS
With respect to the Rio West Office Complex Mortgage Loan, the time period
for completion of certain repairs required pursuant to an immediate repairs
reserve was recently extended to May 30, 2003.
SCHEDULE II-12
With respect to the Acacia Gardens MHC Mortgage Loan, the environmental
consultant reported that in 1994, test results indicated the Mortgaged
Property's onsite water well was contaminated and the Mortgaged Property was
converted to city supplied water. A previous owner of the Mortgaged Property
implemented an Interim Remediation Plan with the Arizona Department of
Environmental Quality (ADEQ) through installation of a groundwater monitoring
system from 1997 through 2000. Although the generator of the groundwater
contamination on the Mortgaged Property was not identified by the ADEQ and other
agencies, the ADEQ concluded that historic activities on the Mortgaged Property
could not have caused the contamination. The source of the contamination is
unknown, however Pima County has been named as a potential responsible party for
its land fill located approximately three quarters of a mile to the southwest of
the Mortgaged Property and flood control property owned by Pima County to the
east of the Mortgaged Property which formerly contained a rocket disassembly
plant. As Pima County reimbursed the property owner of the Mortgaged Property
for all remediation costs and the costs of connecting the Mortgaged Property to
the city's water system, and the ADEQ indicated that historic activities on the
Mortgaged Property did not contribute to the groundwater contamination, the
consultant concluded the owner of the Mortgaged Property will not be held
financially liable for remediation and no further action was warranted.
SCHEDULE II-14 - INSURANCE
With respect to the Dove Canyon MHC Mortgage Loan, only 80% co-insurance
is required, but co-insurance should not be necessary because the only permanent
structure on the Mortgaged Property is the pool cabana which is insured for the
full replacement cost.
SCHEDULE II-18 - LEASEHOLD ESTATE ONLY
With respect to the Flagstaff Business Center Mortgage Loan:
(j) Any subletting of the Mortgaged Property requires the consent of the
lessor, which consent will not be unreasonably withheld.
(k) The prior written consent of the mortgagee is required in order to
amend or modify the Ground Lease, but the Ground Lease does not specifically
state that any such amendment or modification performed without the mortgagee's
consent will not be binding on the mortgagee, its successors or assigns.
SCHEDULE II-22 - LEGAL PROCEEDINGS
With respect to The Pines Apartments Mortgage Loan, pending litigation was
filed against the Borrower, its general partner and limited partners on June 28,
2002. The lawsuit was filed by one of the limited partners seeking an accounting
of and copies of records for the operation of the Mortgaged Property and six
other partnerships which had been involved in a global settlement agreement with
the IRS and SEC regarding the tax exempt status of urban renewal revenue bonds
originally used to finance the seven properties. Notwithstanding the global
settlement agreement to which plaintiff was a party, the plaintiff alleges that
inadequate accounting records, including K-1s, were provided to him for his
records. Counsel for the Borrower has projected costs for litigation at
approximately $40,000.00 and advised that no damages are projected because,
according to Borrower's counsel, the plaintiff is currently only seeking
production of records and has not asserted a claim for damages.
SCHEDULE II-23 - OTHER MORTGAGE LIENS
The Mortgage Loans known as Xxxxxx Apartments (Xxxxxx) and Xxxxxx
Apartments (Camino Xxxxxxx) are cross-collateralized. Each of the two Mortgaged
Properties is encumbered with a first mortgage securing the Mortgage Loan
primarily secured by such Mortgaged Property and a second mortgage securing the
other Mortgage Loan.
SCHEDULE II-33 - NO MATERIAL DEFAULT
With respect to each of the following Mortgage Loans, funds remain in a
reserve account held by the respective servicer to pay for deferred maintenance
identified at the respective Mortgaged Property and as of this date, some or all
of the work remains to be completed:
LOAN NO.: LOAN NAME: BALANCE HELD:
4393 Congress Mini Storage $150,000.00
3637 Pines on the Bay $46,563.00
3636 The Oaks ,Gulfport $60,938.00
SCHEDULE II-42 - SERVICING RIGHTS
Servicing rights have been granted as follows:
LOAN NO.: LOAN NAME: SERVICER:
3215 Gretna Retail Center Capstone Realty Advisors, LLC
2777 CVS-Goldsboro Collateral Mortgage Capital, LLC
3568 Rio West Office Complex Laureate Capital LLC
3341 The Pines Apartments Collateral Mortgage Capital, LLC
4393 Congress Mini-Storage Collateral Mortgage Capital, LLC
0000 Xxxxxxx Xxxxxxx Townhomes Collateral Mortgage Capital, LLC
4475 Riverside Village MHC Collateral Mortgage Capital, LLC
4723 Steeplechase Apts. Phase II Capstone Realty Advisors, LLC
4926 Sherwood MHC Collateral Mortgage Capital, LLC
4657 Flagstaff Business Center Capstone Realty Advisors, LLC
3637 Pines on the Bay Collateral Mortgage Capital, LLC
3636 The Oaks, Gulfport Collateral Mortgage Capital, LLC
4981 Lake Bonny MHC Collateral Mortgage Capital, LLC
4198 The Ponds, Bloomington Capstone Realty Advisors, LLC
5315 Acacia Gardens Collateral Mortgage Capital, LLC
0000 Xxxx Xxxxx Xxxxxxxxxx Xxxxxxxx Realty Advisors, LLC
0000 Xxxxxx Xxxxxx Self-Storage Capstone Realty Advisors, LLC
4824 Xxxxxx Apts.(Xxxxxx) Capstone Realty Advisors, LLC
4732 Xxxxxx Apts.(Camino Xxxxxxx) Capstone Realty Advisors, LLC
5059 Dove Canyon MHC Collateral Mortgage Capital, LLC
5272 Superstition MHC Collateral Mortgage Capital, LLC
0000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx Realty Advisors, LLC
