EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of November 6, 2001 between Prudential Mortgage Capital
Funding, LLC, as seller (the "Seller" or "PMCF") and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule"), except that the Seller has conveyed or will convey
the master servicing rights with regard to the Mortgage Loans (the "Servicing
Rights" to Prudential Asset Resources, Inc. ("PAR"), and PAR shall enter into
certain Sub-Servicing Agreement with Sub-Servicers, all as contemplated in the
Pooling and Servicing Agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans (the "Bank of America Mortgage
Loans") transferred by Bank of America, N.A. ("Bank of America") to the
Purchaser pursuant to a mortgage loan purchase and sale agreement, dated as of
the date hereof between Bank of America and the Purchaser (the "Bank of
America/BACM Mortgage Loan Purchase and Sale Agreement") and (iii) certain
mortgage loans (the "BCRF Mortgage Loans") transferred by Bridger Commercial
Realty Finance LLC ("BCRF") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between BCRF and the
Purchaser (the "BCRF/BACM Mortgage Loan Purchase and Sale Agreement"), to a
trust (the "Trust") created pursuant to the Pooling and Servicing Agreement (as
defined below). Beneficial ownership of the assets of the Trust (such assets
collectively, the "Trust Fund") will be evidenced by a series of commercial
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. and/or Xxxxx'x Investors Service, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of October 1, 2001 (the "Pooling and Servicing Agreement"), among BACM,
as depositor, Prudential Asset Resources, Inc., as master servicer (the "Master
Servicer"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, 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"), Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB') and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") pursuant to
an underwriting agreement, dated as of October 26, 2001 (the "Underwriting
Agreement"). BACM intends to sell the one or more of the remaining Classes of
Certificates (the "Non-Registered Certificates") to Banc of America and Xxxxxxx
Xxxxx, as initial purchasers thereof, pursuant to a certificate purchase
agreement dated October 26, 2001 (the "Certificate Purchase Agreement"), among
Banc of America, BACM and Xxxxxxx Xxxxx. The Registered Certificates are more
fully described in the prospectus dated October 26, 2001 (the "Basic
Prospectus"), and the supplement to the Basic Prospectus dated October 26, 2001
(the "Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
Non-Registered Certificates are more fully described in the private placement
memorandum dated October 26, 2001 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify BACM, Banc of America, SSB and Xxxxxxx
Xxxxx and certain related parties with respect to certain disclosure regarding
the Mortgage Loans and contained in the Prospectus, the Memorandum and certain
other disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of October 26, 2001 (the
"Indemnification Agreement"), among the Seller, SSB, BACM, Banc of America,
Xxxxxxx Xxxxx, Bank of America and BCRF.
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 November 7, 2001 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) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of the Seller that relate to the Mortgage
Loans and originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans (except to the extent such items represent
attorney-client privileged communications and confidential credit analysis of
the client or are to be retained by a sub-servicer that will continue to act on
behalf of the Purchaser or its designee); and (ii) all Escrow Payments and
Reserve Funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans. Unless the Purchaser notifies the Seller in
writing to the contrary, the designated recipient of the items described in
clauses (i) and (ii) of the preceding sentence shall be the Master Servicer.
(e) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the documents and instruments specified
below with respect to each Mortgage Loan. Such documents for each Mortgage Loan
comprise a "Mortgage File". All Mortgage Files delivered prior to the Closing
Date will be held by the Trustee in escrow at all times prior to the Closing
Date. Each Mortgage File shall contain the following documents:
(i) the original Mortgage Note, together with all intervening
endorsements and a final endorsement (in each case, either on the face
thereof or pursuant to a separate allonge) by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of LaSalle Bank National Association, as trustee for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-PB1, without recourse" or
alternatively, if the original Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note (the "Note");
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any,
in each case (unless the particular item has not been returned from the
applicable recorder) with evidence of recording indicated thereon (the
"Mortgage Instrument");
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information with respect to such
Mortgage), executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, in favor of the Trustee (in
such capacity);
(iv) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record thereof prior to the Trustee,
if any, in each case (unless the particular item has not been returned
from the applicable recorder) with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), in recordable
form (except for any missing recording information with respect to such
Assignment of Leases), executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, in favor of
the Trustee (in such capacity), which assignment may be included as part
of the corresponding assignment of Mortgage referred to in clause (iii)
above the documents described in clauses (iii) and (v) being referred to
hereinafter as the "Transfer Documents";
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(viii) originals or copies of any assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if the instrument being modified or assumed was recorded (unless the
particular item has not been returned from the applicable recording
office), in those instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(ix) a title insurance policy or a copy thereof, together with all
endorsements or riders that were issued with or subsequent to the issuance
of such policy, or if the policy has not yet been issued, an original or
copy of a written commitment "marked-up" at the closing of such Mortgage
Loan, interim binder or the pro forma title insurance policy evidencing a
binding commitment to issue such policy (the "Title Policy");
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan;
(xi) (A) copies of any filed UCC Financing Statements and
continuation statements in favor of the originator of the Mortgage Loan
(or any assignee prior to the Trustee) and (B) if any such UCC-1, UCC-2 or
UCC-3 financing statements were filed, an original UCC-2 or UCC-3
financing statement, as applicable, executed by the most recent assignee
of record prior to the Trustee or, if none, by the originator, evidencing
the transfer of such security interest to the Trustee (or a certified copy
of such assignment as sent for filing);
(xii) the original or a copy of any power of attorney (with evidence
of recording thereon, if applicable) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above
was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy thereof;
(xiv) the original or copy of any intercreditor agreement relating
to such Mortgage Loan;
(xv) the original or copy of any operating lease relating to the
related Mortgaged Property;
(xvi) the original or a copy of any related loan agreement relating
to such Mortgage Loan;
(xvii) the original or a copy of any management agreement relating
to such Mortgage Loan; provided that if the Seller sends or causes such
agreement to be sent to the Master Servicer it shall have no duty to
deliver a copy of such agreement to the Trustee;
(xviii) the original or a copy of any lock-box or cash management
agreement relating to such Mortgage Loan;
(xix) the original or a copy of any environmental report and/or
engineering report relating to such Mortgage Loan; provided that, if the
Seller sends or causes such report to be sent directly to the Master
Servicer it shall have no duty to deliver a copy of such report to the
Trustee;
(xx) the original or a copy of any Environmental Insurance Policy;
(xxi) copies of any original letter(s) of credit (provided that the
originals of such letter of credit shall be delivered to the Master
Servicer) relating to such Mortgage Loan, if applicable, and the originals
or copies of any intervening assignments thereof; and
(xxii) a list attached to each Mortgage File indicating the actual
documents included in each such Mortgage File (the "Mortgage File
Checklist").
(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), (iv), (viii), (xi)(A) and (xiii) of the definition of "Mortgage
File", with evidence of recording or filing (if applicable, and as the case may
be) thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, so long as a copy of such document or instrument,
certified by the Seller as being a copy of the document deposited for recording
or filing, has been delivered, and then subject to the requirements of Section
4(d), the delivery requirements of Section 2(e) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File. If the Seller cannot or does not so
deliver, or cause to be delivered, as to any Mortgage Loan, the original of any
of the documents and/or instruments referred to in clauses (iii), (v), and
(xi)(B) of the definition of "Mortgage File", because such document or
instrument has been delivered for recording or filing, as the case may be, then
subject to Section 4(d), the delivery requirements of Section 2(e) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File. If the
Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
Title Policy solely because such policy has not yet been issued, the delivery
requirements of Section 2(e) shall be deemed to be satisfied as to such missing
item, and such missing item shall be deemed to have been included in the related
Mortgage File, provided that the Seller, shall have delivered to the Trustee or
a Custodian appointed thereby, on or before the Closing Date, a binding
commitment for title insurance "marked-up" at the closing of such Mortgage Loan.
(g) The Seller shall in connection with the interest of a related
Mortgagor under a Ground Lease, in each case at its own expense, promptly (and
in any event within 45 days of the Closing Date) notify the related ground
lessor (with a copy of such notice to the Master Servicer) of the transfer of
such Mortgage Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Trustee.
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule or the Mortgage File Checklist, as applicable,
attached to this Agreement as to which a Mortgage Loan is affected, the Seller
shall promptly amend the Mortgage Loan Schedule or the Mortgage File Checklist,
as applicable, and distribute such amended Mortgage Loan Schedule or the
Mortgage File Checklist, as applicable, to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule or Mortgage File Checklist by itself shall not be deemed
to be a cure of a Material Breach.
(j) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
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 limited liability company, duly authorized,
validly existing and in good standing under the laws of the State of
Delaware.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II to and for the benefit of the Purchaser as of the
Closing Date (or as of such other dates specifically provided in the particular
representation and warranty), with respect to (and solely with respect to) each
Mortgage Loan.
(c) If the Seller receives written notice of a Material Document
Defect or a Material Breach pursuant to Section 2.03(a) of the Pooling and
Servicing Agreement, then the Seller shall not later than 90 days from receipt
of such notice (such 90 day period, the "Initial Resolution Period") correct or
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects or repurchase the affected Mortgage Loan or REO Loan
(each, a "Defective Mortgage Loan") at the applicable Purchase Price in
accordance with the terms hereof and the terms of the Pooling and Servicing
Agreement; provided, however, 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 the REMIC Provisions, (ii) that
such Material Breach or Material Document Defect, as the case may be, is capable
of being corrected or cured but not within the applicable Initial Resolution
Period, (iii) that the Seller has commenced and is diligently proceeding with
the cure of such Material Breach or Material Document Defect, as the case may
be, within the applicable Initial Resolution Period, and (iv) that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be corrected or cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such correction or cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, that if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach or
Material Document Defect arises within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f) and if the Detective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qua1ifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amounts, 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 Group are the
subject of a Breach or Document Defect, then, for purposes of determining
whether such Breach or Document Defect is a Material Breach or Material Document
Defect, as the case may be, such 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, 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 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) Except as set forth in Section 4(e), 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
March 1, 2003, the Seller shall reconfirm its obligation to complete such
Mortgage File and to correct all deficiencies associated therewith, and,
if it fails to do so within 45 days after its receipt of such notice, the
Seller shall deliver to the Purchaser or its designee a limited power of
attorney (in a form reasonably acceptable to the Seller and the Purchaser)
permitting the Purchaser or its designee to execute all endorsements
(without recourse) and to execute and, to the extent contemplated by the
Pooling and Servicing Agreement, record all instruments or transfer and
assignment with respect to the subject Mortgage Loan, together with funds
reasonably estimated by the Purchaser to be necessary to cover the costs
of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
Notwithstanding the foregoing, the absence from the Mortgage File
of: (w) the Note, (x) the Mortgage Instrument, (y) the Title Policy or (z)
copies of the Transfer Documents shall be conclusively presumed to be a Material
Document Defect.
(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 Group (as defined herein)
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 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 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 Mortgage Group in accordance with the provisions of this Section
4 unless such other Cross-Collateralized Mortgage Loans satisfy the
Cross-Collateralized Mortgage Loan Repurchase Criteria. In the event that one or
more of such other Cross-Collateralized Mortgage Loans satisfy the
Cross-Collateralized Mortgage Loan Repurchase Criteria, the Seller may elect
either to repurchase only the affected Cross-Collateralized Mortgage Loan as to
which the related Material Breach or Material Document Defect exists or to
repurchase all of the Cross-Collateralized Mortgage Loans in the related Group.
The Seller shall be responsible for the cost of any appraisal required to be
obtained by the Master Servicer to determine if the Cross-Collateralized
Mortgage Loan Repurchase Criteria have been satisfied, so long as the scope and
cost of such appraisal has been approved by the Seller (such approval not to be
unreasonably withheld).
With respect to any Cross-Collateralized Mortgage Loan conveyed
hereunder, to the extent that the Seller repurchases an affected
Cross-Collateralized Mortgage Loan in the manner prescribed in Section 4 while
the Trustee continues to hold any related Cross-Collateralized Mortgage Loans,
the Seller and Purchaser (on behalf of its successors and assigns) agree to
forbear from enforcing any remedies against the other's Primary Collateral, but
each is permitted to exercise remedies against the Primary Collateral securing
its respective affected Cross-Collateralized Mortgage Loans, including, with
respect to the Trustee, the Primary Collateral securing Mortgage Loans still
held by the Trustee, so long as such exercise does not impair the ability of the
other party to exercise its remedies against its Primary Collateral. If the
exercise of remedies by one party would impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Cross-Collateralized Mortgage Loans held by such party, then both parties agree
to forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Mortgage Loans can be modified in a manner
that complies with this Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Mortgage Loans shall be allocated
between such Mortgage Loans in accordance with the Mortgage Loan documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's articles of association or
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than SSB, Banc of America, Xxxxxxx
Xxxxx and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche LLP in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte time, on
the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement or that certain agreement, among Prudential
Mortgage Capital Company, LLC, Banc of America and Xxxxxxx Xxxxx, dated
June 21, 2001 (the "BOA/PMCF Agreement"); and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate substantially in the form of Exhibit
A-1 executed by an authorized officer of the Seller in his or her individual
capacity, and dated the Closing Date, upon which Banc of America, Xxxxxxx Xxxxx,
SSB and BACM may rely, attaching thereto as exhibits the organizational
documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Secretary of State of the State of Delaware, dated not earlier than 30 days
prior to the Closing Date; and
(e) A certificate of the Seller respectively substantially in the
form of Exhibit A-2 hereto, executed by an executive officer or authorized
signatory of the Seller and dated the Closing Date, and upon which the
Purchaser, Banc of America, SSB and Xxxxxxx Xxxxx may rely; and
(f) One or more written opinions of counsel for the Seller in
substantially the form set forth in Exhibit A-3 hereto and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, dated the
Closing Date and addressed to the Purchaser, Banc of America, SSB, Xxxxxxx
Xxxxx, the Trustees and each Rating Agency; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from Deloitte & Touche LLP,
certified public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed to, and
in form and substance acceptable to the Purchaser, Banc of America, SSB, Xxxxxxx
Xxxxx, Bank of America and BCRF stating in effect that, using the assumptions
and methodology used by the Purchaser, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to the
Mortgage Loans set forth in any preliminary Prospectus Supplement, the
Prospectus Supplement and the Memorandum, compared the results of their
calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations.
(k) That certain indemnity agreement, dated as of the date hereof,
(the "Outrigger Indemnity Agreement") executed by the Seller on behalf of the
Trust attached as Exhibit C-1 hereto.
SECTION 9. [RESERVED]
SECTION 10. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and paid in accordance with the Transaction Management
Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., Bank
of America Corporate Center, NC1-007-07-01, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number: (000) 000-0000,
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser; if to the Seller, addressed to Prudential Mortgage Capital
Funding, LLC 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxxxx Center, 8th Floor, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxxx Xxxxx, with a copy to Xxxx
Xxxxx, telecopy number (000) 000-0000 at the same address, or to such other
addresses as may hereafter be furnished to the Purchaser by the Seller in
writing.
SECTION 12. 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 13. 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 14. 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 15. 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 16. 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 17. 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 18. 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 19. 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 Articles 8
and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; (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; (iii) the possession by
the Purchaser or its agent of the Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or a Person designated by such secured party, for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction
(including, without limitation, Section 9-305 or 9-115 thereof); and (iv)
notifications to, and acknowledgments, receipts or confirmations from, Persons
holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. 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 20. 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 "Group"), by their terms,
cross-defaulted and cross-collateralized. Each 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
20 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 20. In addition, if there exists with respect to
any 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 Group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such 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 21. 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 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: /s/
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
------------------------------------------------------------------------------------------------------------------------
Loan Sequence
ID Number Loan Number Property Name Street Address
------------------------------------------------------------------------------------------------------------------------
4 P1 6104314 Quail Cove Apartments 000 Xxxx Xxxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
5 P2 6104093 Xxxxx Xxxx Xxxxx Xxxxxxxxxx 0000 Xxxxx Xxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
9 P3 6104044 Las Ventanas Apartments 0000 Xxxx Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
12 P4 6104339 Xxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
14 P5 6104336 Yorktown Apartments 0000 Xxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
16 P6 6104135 Xxxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
18 P7 6104163 Xxxxxx Xxxxx Xxxxxxxxxx 00000 X.X. 00xx Xxxxx
------------------------------------------------------------------------------------------------------------------------
22 P8 6104382 Patio Apartments 000 Xxxxx Xxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
23 P9 6104341 Xxxxxxxx Apartments 000-X Xxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
28 P10 6104335 Xxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
32 P11 6104348 Xxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
37 P12 6104334 Madison Place Apartments 000 Xxxxxxx Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
46 P13 6104247 Ballantyne Apartments 000 Xxxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
52 P14 6104232 Pinehurst Apartments 0000 X. Xxxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
55 P15 6104233 Calumet Center 000 Xxxxx Xxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
58 P16 6104239 Xxxxx Xxxxxxxx Xxxxx 0000-0000 Xxxxx Xxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
59 P17 6104193 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx 00
------------------------------------------------------------------------------------------------------------------------
60 P18 6104329 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxxxxxxx
------------------------------------------------------------------------------------------------------------------------
62 P19 6104299 Tri-Cities Shopping Center 0000-0000 X. Xxxxx Xx. &
0000 X. Xxx Xxxxxx Xxx.
------------------------------------------------------------------------------------------------------------------------
63 P20 6104330 Pool City Plaza 000-000 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
64 P21 6104195 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxxxxxx Beach Boulevard
------------------------------------------------------------------------------------------------------------------------
66 P22 6104293 Xxxxxxx Center 0000-0000 Xxxx Xxx Xxxxxx Xxxx.
------------------------------------------------------------------------------------------------------------------------
70 P23 6104356 Rocky Face Crossing Shopping Center 0000 Xxxxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
75 P24 6103542 0000-0000 Xx Xxxxx Xxxxxxxxx 0000-0000 Xx Xxxxx Boulevard
------------------------------------------------------------------------------------------------------------------------
82 P25 6104304 Xxxxx Xxxxx Xxxxx 000-000 Xxxxxxx Xxxxx Xxxx.
------------------------------------------------------------------------------------------------------------------------
88 P26 6104366 Pacific Professional Building 0000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
90 P27 6104243 Village Plaza 00000 Xxxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
91.1 P28.1 6104137 00 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
91.2 P28.2 6104137 00 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
91.3 P28.3 6104137 00 Xxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
91 P28 6104137 25, 40 & 00 Xxxxxxxx Xxxxxx Loan Roll-Up
------------------------------------------------------------------------------------------------------------------------
94 P29 6104101 Windsor Commerce Center 00 Xxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
96 P30 6104251 1671 The Alameda 1671 The Alameda
------------------------------------------------------------------------------------------------------------------------
97 P31 6104301 000 Xxxxx Xxxxxx 000-000 Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
100 P32 6104208 First American Plaza 0000 Xxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
101 P33 6104360 Southridge Xxxxxxxxxxxx Xxxxx 0000 Xxxx 0000 Xxxxx
------------------------------------------------------------------------------------------------------------------------
102 P34 6104252 Manhattan Xxxxx Xxxxxx Xxxxxxxx 00000 - 00000 Xxxx Xxxxxx Xxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
103 P35 6104274 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 0000 XxXxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
104 P36 6104245 Republic Security Bank Building 000 XX 000xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
105 P37 6104303 Industriplex Center 00000 Xxxxxxxxxxxx Xxxxxxxxx
------------------------------------------------------------------------------------------------------------------------
106 P38 6104261 Xxxxxxxx Xxxxx 000 Xxxx 0xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
107 P39 6104041 00 Xxxxx Xxxxxx Xxxxxx 60 North Xxxxxx Avenue
------------------------------------------------------------------------------------------------------------------------
109 P40 6104236 Outrigger Reef Hotel 0000 Xxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
110 P41 6104254 Xxxxxxxxxxx Xxxxxxxxx Xxx 00 Xxxxx 0xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
111 P42 6104253 Hilton Garden Inn 0000 Xxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
112 P43 6104257 Candlewood Suites - Overland Park 00000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
113 P44 6103741 Xxxxxxxxx Xxxxxxxxx Xxxx 0000 Xxxxxxxxx 00xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
115.1 P45.1 6104290 Penske Logistics I - Delphi 601 Xxxxxxx Xxxxxxx Memorial Drive
115.2 P45.2 6104290 Penske Logistics II - Panasonic Building 1001 Xxxxxxx Xxxxxxx Memorial Drive
115.3 P45.3 6104290 XxxxxXxx Xxxxxxxx 000 Xxxxxxx Xxxxxxx Memorial Drive
------------------------------------------------------------------------------------------------------------------------
115 P45 6104290 FINSA Industrial Portfolio Loan Roll-Up
------------------------------------------------------------------------------------------------------------------------
117 P46 6104189 Atlantic Xxxxxxxx Xxxxxx XX 000 X Xxxxx Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
118 P47 6104149 Tri-Main Center 0000 Xxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
123 P48 6104250 00 Xxxxxxxxxx Xxxxx 00 Xxxxxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
130.1 P49.1 6104281 Xxxxxx City Self Storage 0000 Xxxxxxxxxx Xxxxxxxxx Xxx.
130.2 P49.2 0000000 Xxxx Xxxxxx Self Storage 000 Xxxxxxxx Xxx
130.3 P49.3 6104281 Stowaway Self Storage 0000 Xxxxxx Xxxxx
130.4 P49.4 6104281 University Self Storage 0000 X. Xxxx Xxxxx Industrial Loop
130.5 P49.5 6104281 Crossroads Self Storage 2900 Xxxx Xxxxx Industrial Loop
------------------------------------------------------------------------------------------------------------------------
130 P49 6104281 Shreveport Self Storage Loan Roll-Up
------------------------------------------------------------------------------------------------------------------------
131 P50 6104343 ASAP Storage - Sarasota 000 Xxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------
132 P51 6104347 ASAP Storage - Kansas City 0000 Xxxxxx Xxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------
134.1 P52.1 6103916 210 and 000 Xxxxxxx Xxxxxx Xxxxx 210 and 000 Xxxxxxx Xxxxxx Xxxxx
134.2 P52.2 6103916 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------
134 P52 6103916 Edward's Ground Lease Portfolio Loan Roll-Up
------------------------------------------------------------------------------------------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE (Cont'd)
---------------------------------------------------------------------------------------------------------------------------
Remaining
Term To
Stated
Maturity /
Loan Zip Mortgage Amortization Original Cut-off ARD
ID City State Code Rate(%) Basis Balance Balance (months)
---------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx XX 00000 7.490% ACT/360 16,200,000.00 16,170,435.86 117
---------------------------------------------------------------------------------------------------------------------------
5 Xxxx Xxxxx XX 00000 7.760% ACT/360 12,800,000.00 12,718,460.30 110
---------------------------------------------------------------------------------------------------------------------------
9 Xxxxxxxxxx XX 00000 7.360% ACT/360 11,500,000.00 11,469,309.20 117
---------------------------------------------------------------------------------------------------------------------------
12 Xxxxxxx XX 00000 7.350% ACT/360 9,500,000.00 9,487,377.26 118
---------------------------------------------------------------------------------------------------------------------------
14 Xxxxxxxxxx XX 00000 7.020% ACT/360 7,500,000.00 7,493,876.53 119
---------------------------------------------------------------------------------------------------------------------------
16 Xxxxxx XX 00000 7.320% ACT/360 6,500,000.00 6,479,698.43 115
---------------------------------------------------------------------------------------------------------------------------
00 Xxxxx Xxxxx XX 00000 7.800% ACT/360 6,300,000.00 6,284,974.30 116
---------------------------------------------------------------------------------------------------------------------------
22 Xxxxxx XX 00000 7.300% ACT/360 5,133,000.00 5,133,000.00 119
---------------------------------------------------------------------------------------------------------------------------
23 Xxxxx XX 00000 7.260% ACT/360 4,640,000.00 4,633,694.62 118
---------------------------------------------------------------------------------------------------------------------------
28 Xxxxxxxxxxxx XX 00000 7.200% ACT/360 4,300,000.00 4,294,069.05 118
---------------------------------------------------------------------------------------------------------------------------
32 Xxxxxxx XX 00000 7.300% ACT/360 3,100,000.00 3,097,053.17 119
---------------------------------------------------------------------------------------------------------------------------
37 Xxxxxxxxxxx XX 00000 7.360% ACT/360 2,516,000.00 2,512,665.35 118
---------------------------------------------------------------------------------------------------------------------------
46 Xxxxxxxx XX 00000 7.210% ACT/360 1,560,000.00 1,556,928.19 117
---------------------------------------------------------------------------------------------------------------------------
52 Xxxxxxxx XX 00000 8.370% ACT/360 1,000,000.00 995,572.16 237
---------------------------------------------------------------------------------------------------------------------------
55 Xxxxxxx Xxxx XX 00000 7.640% ACT/360 15,665,000.00 15,637,583.25 000
---------------------------------------------------------------------------------------------------------------------------
00 Xx. Xxxxx XX 00000 7.650% ACT/360 7,340,000.00 7,330,964.30 118
---------------------------------------------------------------------------------------------------------------------------
59 Xxxxxxx XX 00000 7.300% ACT/360 6,500,000.00 6,473,418.66 000
---------------------------------------------------------------------------------------------------------------------------
00 Xxxxxx XX 00000 7.810% ACT/360 6,080,000.00 6,072,820.91 118
---------------------------------------------------------------------------------------------------------------------------
62 Xxxxxxxxx XX 00000 7.560% ACT/360 5,875,000.00 5,862,934.18 118
---------------------------------------------------------------------------------------------------------------------------
00 Xxxxx Xxxxxxx Xxxxxxxx XX 00000 7.650% ACT/360 5,300,000.00 5,293,475.58 118
---------------------------------------------------------------------------------------------------------------------------
64 Xxxxxxxxxx XX 00000 7.540% ACT/360 4,700,000.00 4,691,540.76 117
---------------------------------------------------------------------------------------------------------------------------
66 Xxx Xxxxxx XX 00000 8.330% ACT/360 4,400,000.00 4,386,637.82 178
---------------------------------------------------------------------------------------------------------------------------
70 Xxxxxx XX 00000 7.260% ACT/360 3,720,000.00 3,717,103.81 119
---------------------------------------------------------------------------------------------------------------------------
75 Xxx Xxxxx XX 00000 7.780% ACT/360 3,455,000.00 3,361,962.54 215
---------------------------------------------------------------------------------------------------------------------------
82 Xxxx Xxxxx XX 00000 7.370% ACT/360 2,500,000.00 2,496,194.89 119
---------------------------------------------------------------------------------------------------------------------------
88 Xxx Xxxxxxxxx XX 00000 7.400% ACT/360 30,000,000.00 29,971,989.15 119
---------------------------------------------------------------------------------------------------------------------------
90 Xxxxxxxx XX 00000 7.540% ACT/360 16,775,000.00 16,457,522.52 116
---------------------------------------------------------------------------------------------------------------------------
91.1 Xxxxxxxxx XX 00000
91.2 Xxxxxxxxx XX 00000
91.3 Xxxxxxxxx XX 00000
---------------------------------------------------------------------------------------------------------------------------
91 7.550% ACT/360 16,000,000.00 15,988,244.04 119
---------------------------------------------------------------------------------------------------------------------------
94 Xxxxxxx XX 00000 7.580% ACT/360 8,800,000.00 8,751,103.75 112
---------------------------------------------------------------------------------------------------------------------------
96 Xxx Xxxx XX 00000 7.780% ACT/360 5,600,000.00 5,593,335.45 116
---------------------------------------------------------------------------------------------------------------------------
97 Xxxxxxx XX 00000 7.050% ACT/360 5,275,000.00 5,244,607.39 119
---------------------------------------------------------------------------------------------------------------------------
100 Xxxxxx XX 00000 7.400% ACT/360 3,800,000.00 3,787,250.65 000
---------------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxxxx XX 00000 7.450% ACT/360 2,800,000.00 2,797,409.03 119
---------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx XX 00000 7.900% ACT/360 2,475,000.00 2,465,410.26 000
---------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx XX 00000 7.800% ACT/360 2,450,000.00 2,443,036.42 117
---------------------------------------------------------------------------------------------------------------------------
000 X. Xxxxx Xxxxx XX 00000 7.810% ACT/360 2,440,000.00 2,426,716.33 116
---------------------------------------------------------------------------------------------------------------------------
105 Xxxxx Xxxxx XX 00000 7.590% ACT/360 2,300,000.00 2,300,000.00 000
---------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx XX 00000 7.560% ACT/360 2,100,000.00 2,095,138.63 117
---------------------------------------------------------------------------------------------------------------------------
107 Xxxxxxx XX 00000 8.010% ACT/360 1,750,000.00 1,741,875.54 115
---------------------------------------------------------------------------------------------------------------------------
109 Xxxxxxxx XX 00000 6.910% ACT/360 72,300,000.00 71,791,000.03 114
---------------------------------------------------------------------------------------------------------------------------
110 Xxxxxxxxxxx XX 00000 8.280% ACT/360 9,950,000.00 9,914,220.88 116
---------------------------------------------------------------------------------------------------------------------------
111 Xxxxxxxxx XX 00000 8.050% ACT/360 8,700,000.00 8,667,261.78 116
---------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxx XX 00000 8.300% ACT/360 4,000,000.00 3,989,764.30 117
---------------------------------------------------------------------------------------------------------------------------
113 Xxxxxx XX 00000 7.350% ACT/360 17,500,000.00 17,426,588.24 117
---------------------------------------------------------------------------------------------------------------------------
115.1 Xxx Xxxxxx XX 00000
115.2 Xxx Xxxxxx XX 00000
115.3 Xxx Xxxxxx XX 00000
---------------------------------------------------------------------------------------------------------------------------
115 7.840% ACT/360 9,800,000.00 9,791,548.94 119
---------------------------------------------------------------------------------------------------------------------------
117 Xxxxxxxxx XX 00000 7.580% ACT/360 7,250,000.00 7,163,712.22 113
---------------------------------------------------------------------------------------------------------------------------
118 Xxxxxxx XX 00000 8.420% ACT/360 3,400,000.00 3,396,662.00 119
---------------------------------------------------------------------------------------------------------------------------
123 Xxxxxxxx XX 00000 7.880% ACT/360 1,300,000.00 1,296,963.86 116
---------------------------------------------------------------------------------------------------------------------------
130.1 Xxxxxxxxxx XX 00000
130.2 Xxxxxxxxxx XX 00000
130.3 Xxxxxxxxxx XX 00000
130.4 Xxxxxxxxxx XX 00000
130.5 Xxxxxxxxxx XX 00000
---------------------------------------------------------------------------------------------------------------------------
130 7.820% ACT/360 6,000,000.00 5,976,213.86 116
---------------------------------------------------------------------------------------------------------------------------
131 Xxxxxxxx XX 00000 7.450% ACT/360 3,200,000.00 3,196,322.93 119
---------------------------------------------------------------------------------------------------------------------------
132 Xxxxxx Xxxx XX 00000 7.450% ACT/360 2,680,000.00 2,676,920.45 119
---------------------------------------------------------------------------------------------------------------------------
134.1 Xxxxxxx Xxxxx XX 00000
134.2 Xxxxxxx Xxxxx XX 00000
---------------------------------------------------------------------------------------------------------------------------
134 8.500% ACT/360 6,500,000.00 6,451,884.93 106
---------------------------------------------------------------------------------------------------------------------------
TOTAL 411,454,454.70
===========================================================================================================================
SCHEDULE I
MORTGAGE LOAN SCHEDULE (Cont'd)
-------------------------------------------------------------------------------------------------------------------------------
Stated
Maturity Primary Master Original
Loan Date Due Monthly Admin. Servicing Servicing Ownership Amortization ARD
ID ARD Date Payment Fee Fee Fee Interest Crossed (months) Loan
-------------------------------------------------------------------------------------------------------------------------------
4 07/01/11 1st $113,161.84 0.08220% 0.04000% 0.08000% Fee Simple No 360 Yes
-------------------------------------------------------------------------------------------------------------------------------
5 12/01/10 1st $ 91,789.24 0.05220% 0.01000% 0.05000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
9 07/01/11 1st $ 79,310.11 0.08220% 0.04000% 0.08000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
12 08/01/11 1st $ 65,452.35 0.05220% 0.01000% 0.05000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
14 09/01/11 1st $ 49,998.47 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
16 05/01/11 1st $ 44,670.83 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
18 06/01/11 1st $ 45,351.84 0.05220% 0.01000% 0.05000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
22 09/01/11 1st $ 35,904.63 0.10220% 0.06000% 0.10000% Fee Simple No 336 No
-------------------------------------------------------------------------------------------------------------------------------
23 08/01/11 1st $ 31,684.46 0.08220% 0.04000% 0.08000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
28 08/01/11 1st $ 29,187.89 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
32 09/01/11 1st $ 21,805.16 0.05220% 0.01000% 0.05000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
37 08/01/11 1st $ 17,351.67 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
46 07/01/11 1st $ 10,599.66 0.05220% 0.01000% 0.05000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
52 07/01/21 1st $ 8,596.13 0.05220% 0.01000% 0.05000% Fee Simple No 240 No
-------------------------------------------------------------------------------------------------------------------------------
55 07/01/11 1st $111,037.58 0.05220% 0.01000% 0.05000% Fee Simple No 360 Yes
-------------------------------------------------------------------------------------------------------------------------------
58 08/01/11 1st $ 52,078.35 0.05220% 0.01000% 0.05000% Lease Hold No 360 No
-------------------------------------------------------------------------------------------------------------------------------
59 04/01/11 1st $ 44,562.11 0.05220% 0.01000% 0.05000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
60 08/01/11 1st $ 43,810.22 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
62 08/01/11 1st $ 43,645.28 0.05220% 0.01000% 0.05000% Fee Simple No 300 Yes
-------------------------------------------------------------------------------------------------------------------------------
63 08/01/11 1st $ 37,604.26 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
64 07/01/11 1st $ 32,991.91 0.10220% 0.06000% 0.10000% Lease Hold No 360 No
-------------------------------------------------------------------------------------------------------------------------------
66 08/01/16 1st $ 37,712.13 0.10220% 0.06000% 0.10000% Fee Simple No 240 No
-------------------------------------------------------------------------------------------------------------------------------
70 09/01/11 1st $ 25,402.19 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
75 09/01/19 1st $ 26,164.69 0.05220% 0.01000% 0.05000% Fee Simple No 300 Yes
-------------------------------------------------------------------------------------------------------------------------------
82 09/01/11 1st $ 19,159.28 0.05220% 0.01000% 0.05000% Fee Simple No 264 No
-------------------------------------------------------------------------------------------------------------------------------
88 09/01/11 1st $213,010.85 0.05220% 0.01000% 0.05000% Lease Hold No 330 No
-------------------------------------------------------------------------------------------------------------------------------
90 06/01/11 1st $115,844.49 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
91.1
91.2
91.3
-------------------------------------------------------------------------------------------------------------------------------
91 09/01/11 1st $112,422.63 0.08220% 0.04000% 0.08000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
94 02/01/11 1st $ 62,013.66 0.09220% 0.05000% 0.09000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
96 06/01/11 1st $ 40,235.24 0.10220% 0.06000% 0.10000% Fee Simple No 360 No
-------------------------------------------------------------------------------------------------------------------------------
97 09/01/11 1st $ 61,383.24 0.10220% 0.06000% 0.10000% Fee Simple No 120 No
-------------------------------------------------------------------------------------------------------------------------------
100 06/01/11 1st $ 26,981.38 0.05220% 0.01000% 0.05000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
101 09/01/11 1st $ 19,974.30 0.05220% 0.01000% 0.05000% Lease Hold No 330 No
-------------------------------------------------------------------------------------------------------------------------------
102 06/01/11 1st $ 18,938.79 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
103 07/01/11 1st $ 18,586.05 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
104 06/01/11 1st $ 19,433.12 0.10220% 0.06000% 0.10000% Fee Simple No 262 No
-------------------------------------------------------------------------------------------------------------------------------
105 09/01/11 1st $ 16,372.20 0.05220% 0.01000% 0.05000% Fee Simple No 348 Yes
-------------------------------------------------------------------------------------------------------------------------------
106 07/01/11 1st $ 15,135.11 0.10220% 0.06000% 0.10000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
107 05/01/11 1st $ 13,518.38 0.10220% 0.06000% 0.10000% Fee Simple No 300 Yes
-------------------------------------------------------------------------------------------------------------------------------
109 04/01/11 1st $506,857.87 0.05220% 0.01000% 0.05000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
110 06/01/11 1st $ 78,650.36 0.05220% 0.01000% 0.05000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
111 06/01/11 1st $ 67,436.43 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
112 07/01/11 1st $ 31,671.77 0.05220% 0.01000% 0.05000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
113 07/01/11 1st $133,896.45 0.10220% 0.06000% 0.10000% Fee Simple No 264 No
-------------------------------------------------------------------------------------------------------------------------------
115.1
115.2
115.3
-------------------------------------------------------------------------------------------------------------------------------
115 09/01/11 1st $ 72,477.73 0.05220% 0.01000% 0.05000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
117 03/01/11 1st $ 58,760.67 0.10220% 0.06000% 0.10000% Fee Simple No 240 No
-------------------------------------------------------------------------------------------------------------------------------
118 09/01/11 1st $ 27,194.67 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
123 06/01/11 1st $ 9,430.41 0.05220% 0.01000% 0.05000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
130.1
130.3
130.4
130.5
-------------------------------------------------------------------------------------------------------------------------------
130 06/01/11 1st $ 45,639.38 0.05220% 0.01000% 0.05000% Fee Simple No 330 No
-------------------------------------------------------------------------------------------------------------------------------
131 09/01/11 1st $ 23,543.74 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
132 09/01/11 1st $ 19,717.88 0.10220% 0.06000% 0.10000% Fee Simple No 300 No
-------------------------------------------------------------------------------------------------------------------------------
134.1
134.2
-------------------------------------------------------------------------------------------------------------------------------
134 08/01/10 1st $ 49,979.38 0.10220% 0.06000% 0.10000% Fee Simple No 360 Yes
-------------------------------------------------------------------------------------------------------------------------------
SCHEDULE I
MORTGAGE LOAN SCHEDULE (Cont'd)
-----------------------------------------------
Loan Grace
ID Period Primary Servicer
-----------------------------------------------
4 5 Prudential Mortgage Capital
-----------------------------------------------
5 5 Prudential Mortgage Capital
-----------------------------------------------
9 5 Prudential Mortgage Capital
-----------------------------------------------
12 5 Prudential Mortgage Capital
-----------------------------------------------
14 5 Prudential Mortgage Capital
-----------------------------------------------
16 5 Prudential Mortgage Capital
-----------------------------------------------
18 5 Prudential Mortgage Capital
-----------------------------------------------
22 5 Prudential Mortgage Capital
-----------------------------------------------
23 5 Prudential Mortgage Capital
-----------------------------------------------
28 5 Prudential Mortgage Capital
-----------------------------------------------
32 5 Prudential Mortgage Capital
-----------------------------------------------
37 5 Prudential Mortgage Capital
-----------------------------------------------
46 5 Prudential Mortgage Capital
-----------------------------------------------
52 5 Prudential Mortgage Capital
-----------------------------------------------
55 5 Prudential Mortgage Capital
-----------------------------------------------
58 5 Prudential Mortgage Capital
-----------------------------------------------
59 5 Prudential Mortgage Capital
-----------------------------------------------
60 5 Prudential Mortgage Capital
-----------------------------------------------
62 5 Prudential Mortgage Capital
-----------------------------------------------
63 5 Prudential Mortgage Capital
-----------------------------------------------
64 5 Prudential Mortgage Capital
-----------------------------------------------
66 5 Prudential Mortgage Capital
-----------------------------------------------
70 5 Prudential Mortgage Capital
-----------------------------------------------
75 10 Prudential Mortgage Capital
-----------------------------------------------
82 5 Prudential Mortgage Capital
-----------------------------------------------
88 5 Prudential Mortgage Capital
-----------------------------------------------
90 5 Prudential Mortgage Capital
-----------------------------------------------
91.1
91.2
91.3
-----------------------------------------------
91 5 Prudential Mortgage Capital
-----------------------------------------------
94 5 Prudential Mortgage Capital
-----------------------------------------------
96 5 Prudential Mortgage Capital
-----------------------------------------------
97 5 Prudential Mortgage Capital
-----------------------------------------------
100 5 Prudential Mortgage Capital
-----------------------------------------------
101 5 Prudential Mortgage Capital
-----------------------------------------------
102 5 Prudential Mortgage Capital
-----------------------------------------------
103 5 Prudential Mortgage Capital
-----------------------------------------------
104 5 Prudential Mortgage Capital
-----------------------------------------------
105 5 Prudential Mortgage Capital
-----------------------------------------------
106 5 Prudential Mortgage Capital
-----------------------------------------------
107 5 Prudential Mortgage Capital
-----------------------------------------------
109 5 Prudential Mortgage Capital
-----------------------------------------------
110 5 Prudential Mortgage Capital
-----------------------------------------------
111 5 Prudential Mortgage Capital
-----------------------------------------------
112 5 Prudential Mortgage Capital
-----------------------------------------------
113 5 Prudential Mortgage Capital
-----------------------------------------------
115.1
115.2
115.3
-----------------------------------------------
115 5 Prudential Mortgage Capital
-----------------------------------------------
117 5 Prudential Mortgage Capital
-----------------------------------------------
118 5 Prudential Mortgage Capital
-----------------------------------------------
123 5 Prudential Mortgage Capital
-----------------------------------------------
130.1
130.3
130.4
130.5
-----------------------------------------------
130 5 Prudential Mortgage Capital
-----------------------------------------------
131 5 Prudential Mortgage Capital
-----------------------------------------------
132 5 Prudential Mortgage Capital
-----------------------------------------------
134.1
134.2
-----------------------------------------------
134 10 Prudential Mortgage Capital
-----------------------------------------------
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
FOUR XXXXXXX XXXXXX, 0XX XXXXX
000 XXXXXXXX XXXXXX
XXXXXX, XXX XXXXXX 00000
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTITES
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, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE UNDERWRITING, ORIGINATION
OR SALE OF THE MORTGAGE LOANS REGARDING THE MATTERS EXPRESSLY SET FORTH BELOW IN
EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT INQUIRY INTO SUCH MATTERS AND
WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT (I) HAVING SENT TO THE SERVICERS
SERVICING THE MORTGAGE LOANS ON BEHALF OF THE SELLER, IF ANY, SPECIFIC INQUIRIES
REGARDING THE MATTERS REFERRED TO AND (II) AS EXPRESSLY SET FORTH HEREIN). ALL
INFORMATION CONTAINED IN DOCUMENTS WHICH ARE PART OF A MORTGAGE FILE AS REQUIRED
BY THE POOLING AND SERVICING AGREEMENT (TO THE EXTENT SUCH DOCUMENTS EXIST)
SHALL BE DEEMED WITHIN THE SELLER'S KNOWLEDGE.
The Seller hereby represents and warrants that, as of the date
herein below specified or, if no such date is specified, as of the Closing Date
except with respect to the Exceptions described on Schedule IIA and subject to
Section 20 of this Agreement:
SECTION 23. 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.
SECTION 24. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good and
marketable 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. Upon consummation of transactions contemplated by
the 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.
SECTION 25. Payment Record. As of the Closing Date, the Mortgage
Loan is not, and in the prior 12 months (or since the date of origination if
such Mortgage Loan has been originated within the past 12 months), has not been,
30 days or more past due in respect of any Monthly Payment without giving effect
to any applicable grace period.
SECTION 26. Lien; Valid Assignment. 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, and there are no liens and/or encumbrances that are pari passu
with the lien of such Mortgage, in any event 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 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 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 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, the current
principal use of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service the related
Mortgage Loan, 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, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
SECTION 27. 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, binding and, subject to the exceptions
set forth in Paragraph 13 below, enforceable assignment of such Assignment of
Leases from the relevant assignor to the Trustee. If an Assignment of Leases
exists with respect to any Mortgage Loan (whether as part of the related
Mortgage or separately), then the related Mortgage or related Assignment of
Leases, subject to applicable law, provides for the appointment of a receiver
for the collection of rents or for the related mortgagee to enter into
possession to collect the rents.
SECTION 28. 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.
SECTION 29. Condition of Property; Condemnation. 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
Mortgage File, the related Mortgaged Property is to the Seller's knowledge, free
and clear of any damage that 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). The Seller has no knowledge of
any proceeding pending or threatened 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, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties 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.
SECTION 30. 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 or to any
Permitted Encumbrances. 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. The Seller has not
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 if a survey was reviewed or prepared in connection
with the origination of the related Mortgage Loan, the area shown on such survey
is the same as the property legally described in the related Mortgage.
SECTION 31. 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.
SECTION 32. 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,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
SECTION 33. 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 such customary fee, as
may be payable, in connection with any full or partial release of the related
Mortgaged Property or related security for such Mortgage Loan.
SECTION 34. Environmental Conditions. With respect to each Mortgaged
Property (a) an environmental site assessment, an environmental site assessment
update or a transaction screen was performed by an independent third-party
environmental consultant with respect to each Mortgaged Property securing a
Mortgage Loan 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) a party not related to the related Borrower was
identified as a responsible party for such condition or circumstance, (B) the
related Borrower was required to provide additional security and/or to obtain
and, for the period contemplated by the related Mortgage Loan documents,
maintain an operations and maintenance plan, (C) the related Borrower provided a
"no further action" letter or other evidence acceptable to the Seller in its
reasonable business judgment, 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, (D) such
conditions or circumstances were investigated further and based upon such
additional investigation, a qualified environmental consultant recommended no
further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Borrower or other 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, (H) 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 (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had, in the Seller's sole discretion, an
appropriate net worth in light of the environmental matters covered by such
guaranty or indemnity. 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 Seller has required the
related Borrower to provide a secured creditor environmental insurance policy
for the Mortgaged Properties identified in Schedule IIA Representation 12. All
environmental assessments that were in the possession of the Seller and that
relate to a Mortgaged Property which is insured by an environmental insurance
policy have been delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such policy. The Mortgage
for each Mortgage Loan encumbering the Mortgaged Property or other related loan
documents require the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations.
SECTION 35. 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 (i) bankruptcy, insolvency, fraudulent
transfer, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) 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 (i) and (ii)) 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. Except as set forth in the
immediately preceding sentence, there was no valid offset, defense, counter
claim or right of rescission available to the related Borrower with respect to
any of the related Mortgage Notes, Mortgages or other loan documents, including,
without limitation, any such valid offset, defense, counter claim or right based
on intentional fraud by Seller in connection with the origination of the
Mortgage Loan, that would deny the mortgagee the principal benefits intended to
be provided by the Mortgage Note, Mortgage or other loan documents.
SECTION 36. 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 twelve (12) months
(or a specified dollar amount which, in the reasonable judgement of the Seller,
will cover no less than twelve months of rental income), unless such Mortgaged
Property constitutes a manufactured housing community. All such hazard 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. 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). Each Mortgage requires
that the Borrower or a tenant of the Borrower maintain insurance as described
above or permits the mortgagee to require insurance or self insurance as
described above, and permits the mortgagee to purchase such insurance at the
Borrower's expense if Borrower fails to do so or provides that the mortgagee has
the general right to cure defaults of the Borrower. Each Mortgaged Property is
also covered by comprehensive general liability insurance in an amount at least
equal to $1million. If any material part of the improvements, exclusive of a
parking lot, located on a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, the related Mortgagor is required to maintain flood insurance in
respect thereof to the extent such flood insurance is available.
SECTION 37. Taxes and Assessments. To the Seller's knowledge, 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, or if there
are such delinquent charges or taxes, or if the appropriate amount of such taxes
or charges is being appealed or is otherwise in dispute, the unpaid taxes or
charges are covered by an escrow of funds or other security sufficient to pay
such tax or 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.
SECTION 38. Borrower Bankruptcy. To the Seller's knowledge, no
Borrower under a Mortgage Loan is a debtor in any state or federal bankruptcy,
insolvency or similar proceeding.
SECTION 39. 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 based on
such other due diligence considered reasonable by prudent commercial mortgage
lenders in the lending area where the subject Mortgaged Property is located
(including, without limitation, when commercially reasonable, a representation
of the related Borrower at the time of origination of the subject Mortgage
Loan), 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 (i) the value of the related Mortgaged Property
as determined by the appraisal performed in connection with the origination of
such Mortgage Loan; or (ii) the principal use of the Mortgaged Property as of
the date of the origination of such Mortgage Loan.)
SECTION 40. 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) 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. If required by such Ground Lease, the lessor has received notice of
the lien of the related Mortgage in accordance with the provisions of such
Ground Lease;
(d) To the Seller's knowledge, the Ground Lease is in full force and
effect as of the Closing Date and, to the Seller's knowledge, there is no
material default under such Ground Lease;
(e) The related ground lessor has agreed to provide the holder of
the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a
reasonable time to cure any default or breach by the lessee thereunder,
including such time as is necessary to gain possession of the Mortgaged
Property, by foreclosure or otherwise, if possession is necessary to effect such
cure, before the lessor thereunder may terminate such Ground Lease. 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 the mortgagee;
(f) Such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the mortgagee if it takes possession of
such leasehold interest) that extends not less than 20 years beyond the stated
maturity of the related Mortgage Loan; or, if not 20 years, at least 10 years
beyond such stated maturity date;
(g) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the related
Borrower unless the mortgagee under such Mortgage Loan fails to cure a curable
default of the lessee under such Ground Lease following notice thereof from the
lessor;
(h) 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 loan lender), or
(ii) to the payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(i) 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
(j) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee without
the prior written 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.
SECTION 41. 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)).
SECTION 42. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has 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.
SECTION 43. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Borrower, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly (b) a portion of the cash
flow generated by such Mortgaged Property will be applied each month to pay down
the principal balance thereof in addition to the principal portion of the
related Monthly Payment.
SECTION 44. Legal Proceedings. To the Seller's knowledge, there are
no pending actions, suits, governmental investigations 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, the principal benefit of the
security intended to be provided by the Mortgage Loan documents or the current
ability of the Borrower to pay principal, interest or any other amounts due
under such Mortgage Loan or the current principal use of the Mortgaged Property.
SECTION 45. Other Mortgage Liens. None of the Mortgage Loans permits
the related Mortgaged Property to be encumbered by any mortgage lien junior to
or of equal priority with the lien of the related Mortgage without the prior
written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. To the Seller's knowledge,
except for cases involving Cross-Collateralized 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.
SECTION 46. No Mechanics' Liens. To the Seller's knowledge, (i) 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 (ii) 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.
SECTION 47. Compliance. Each Mortgage Loan complied with, or was
exempt from, all applicable usury laws in effect at its date of origination.
SECTION 48. Licenses and Permits. To the Seller's knowledge, as of
the date of origination of each Mortgage Loan and based on any of: (i) a letter
from governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the 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, and, as of
the Cut-Off Date, the Seller has no knowledge that the related Borrower was not
in possession of such licenses, permits and authorizations or that such
licenses, permits and authorizations have not otherwise been issued.
SECTION 49. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
SECTION 50. 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 (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
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 (i) the satisfaction of certain legal and
underwriting requirements or (ii) 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.
SECTION 51. Defeasance. If such Mortgage Loan contains a provision
for any defeasance of mortgage collateral, such Mortgage Loan either (A) (1)
permits defeasance no earlier than two years after the Closing Date, (2) permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount sufficient to make all scheduled payments under the Mortgage Note and (3)
such Mortgage Loan has been transferred by the Seller with the intent that the
defeasance provision not be utilized (x) for any reason other than to facilitate
the disposition of the Mortgaged Property or any other customary commercial
transaction or (y) as a part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages or (B) requires that a legal
opinion or opinions be delivered with respect to the defeasance that states
subject to customary assumptions and qualifications that the holder of the such
Mortgage Loan has a first priority perfected security interest in the defeasance
collateral and that the defeasance will not cause the Trust to fail to qualify
as a REMIC or be subject to any "prohibited transaction" tax as defined in the
REMIC Provisions (the "Legal Opinion"). The related mortgage loan documents
enable the lender to charge the expenses associated with permitting a defeasance
to the Borrower and provide for the following items (or otherwise contain
provisions pursuant to which the holder can require such items): (a) an
accountant's certification as to the adequacy of the defeasance collateral to
make payments under the related Mortgage Loan for the remainder of its term, (b)
the Legal Opinion, and (c) a letter or other written evidence from the Rating
Agencies that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates.
SECTION 52. Fixed Rate Loan. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
SECTION 53. Inspection. Each related Mortgaged Property was
inspected by or on behalf of the related originator or an affiliate during the
12 month period prior to the related origination date.
SECTION 54. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan and no event has occurred which,
with the passing of time or giving of notice and the expiration of any grace or
cure period, would constitute such a material default or breach; 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. Neither the Seller nor any
servicer on behalf of the Seller has accelerated the Mortgage Loan or commenced
judicial or non-judicial foreclosure proceedings with respect to the Mortgage
Loan.
SECTION 55. Due-on-Sale. Subject to exceptions set forth in the
related Mortgage Loan documents and except with respect to transfers by reason
of family and estate planning and transfers of less than a controlling interest
in a Mortgagor, or a substitution or release of collateral within the parameters
of paragraph 28 above, each Mortgage contains a "due on sale" clause which
expressly or effectively provides for the acceleration of the payment of the
unpaid principal balance and accrued interest of the related Mortgage Loan if,
without the prior written consent of the holder of such Mortgage, the related
Mortgaged Property, or any interest therein, is directly or indirectly
transferred or sold.
SECTION 56. Single Purpose Entity. The Borrower on each Mortgage
Loan with a Cut-off Date Balance of $15,000,000 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 Mortgaged 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 Mortgaged 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, that it holds itself out as a
legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
except on an arm's-length basis.
SECTION 57. Whole Loan. Each Mortgage loan is a whole loan and not a
participation interest in a mortgage loan.
SECTION 58. Security Interests. If any Mortgaged Property securing a
Mortgage Loan is operated as a hospitality property then (a) the security
agreements, financing statements or other instruments, if any, related to the
Mortgage Loan secured by such Mortgaged Property establish and create a valid
and enforceable (subject to the exceptions set forth in paragraph 13 above)
security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
SECTION 59. Prepayment Premiums. Prepayment Premiums payable with
respect to each Mortgage Loan, if any, constitute "customary prepayment
penalties" within meaning of Treasury Regulation Section 1.860G-1(b)(2).
SECTION 60. [RESERVED].
SECTION 61. Sub-Servicing Agreements. If such Mortgage Loan is, as
of the Closing Date, subject to a Sub-Servicing Agreement, such Sub-Servicing
Agreement provides that the related Sub-Servicer is not to receive any
sub-servicing compensation with respect to such Mortgage Loan during any period
that such Mortgage Loan is a Specially Serviced Mortgage Loan or an REO Loan
(except for any Termination Strip payable, if applicable, to a Sub-Servicer in
connection with a termination thereof without cause as contemplated by Section
3.22(d) of the Pooling and Servicing Agreement); provided, however, that, at the
related Sub-Servicer's option, although its Sub-Servicing duties shall terminate
to the extent transferred to the Special Servicer, the related Sub-Servicer may
retain the Mortgage Loans on its computer systems so long as such Mortgage Loans
are Specially Serviced Mortgage Loans (without any compensation therefor),
provided, however, that the related Sub-Servicer will be entitled to the fees to
which it would otherwise have been entitled during the period that such
Specially Serviced Mortgage Loan remains boarded on such Sub-Servicer's computer
system, if the Sub-Servicer was performing servicing functions at the request of
the Special Servicer during such period. Any such Mortgage Loan retained on the
computer system of a Sub-Servicer shall be subject to the rights of the Special
Servicer while such Mortgage Loan is a Specially Serviced Mortgage Loan.
SECTION 62. 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 misappropriation or misapplication 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.
SECTION 63. Assignment of Collateral. There is no material
collateral securing any Mortgage Loan that has not been assigned to the
Purchaser.
SECTION 64. 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.
SECTION 65. Escrows. All escrow deposits (including capital
improvements and environmental remediation reserves) relating to any Mortgage
Loan that were required to be delivered to the lender under the terms of the
related Mortgage Loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession or under the
control of Seller or its agents (which shall include the Master Servicer). All
such escrow deposits which are required for the administration and servicing of
such Mortgage Loan are conveyed hereunder to the Purchaser. Any and all material
requirements under each Mortgage Loan as to completion of any material
improvements and as to disbursement of any funds escrowed for such purpose,
which requirements were to have been complied with on or before the Closing
Date, have been complied with in all material respects or, if and to the extent
not so complied with, the escrowed funds (or an allocable portion thereof) have
not been released except in accordance with the terms of the related loan
documents.
SECTION 66. 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 rent rolls (if there is more than one tenant) for
the related Mortgaged Property and/or financial statements of the related
Borrower, and with such other information as may be required therein.
SECTION 67. Appraisals. An appraisal of the related Mortgaged
Property was conducted in connection with the origination of the Mortgage Loan,
which appraisal is signed by an appraiser, who, to the Seller's knowledge, had
no interest, direct or indirect, in the Mortgaged Property or the Borrower or in
any loan made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; in connection with the
origination of the Mortgage Loan, each appraiser has represented in such
appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation.
SECTION 68. No Capital Contributions. The Seller has no obligation
to make any capital contributions to the related Mortgagor under the Mortgage
Loan.
SECTION 69. Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for Monthly Payments no longer than ten (10) days from
the applicable Due Date.
SECTION 70. Access Routes. Based solely on surveys, title insurance
reports, the Title Policy, the engineering report, the appraisal and/or other
relevant documents included in the Mortgage File, at the time of origination of
the Mortgage Loan, the Mortgaged Property (A) had access to a public road, and
(B) was served by public or private water, sewer (or septic facilities) and
other utilities.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
FOUR XXXXXXX XXXXXX, 0XX XXXXX
000 XXXXXXXX XXXXXX
XXXXXX, XXX XXXXXX 00000
SCHEDULE II-A
PMCF EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
BACM 2001 PB-1
Set forth below are the exceptions to the Representations and Warranties
provided in Schedule II of that certain Mortgage Loan Purchase Agreement dated
as of November 6, 2001 by and between Prudential Mortgage Capital Funding, LLC
and Banc of America Commercial Mortgage, Inc.
1. Representation #12 - Environmental Conditions.
Loan No. 6104195 (Hallandale Place Shopping Center) - The related Mortgaged
Property has been impacted by former on-site dry cleaning operations. The
Borrower has applied for and received an Order of Eligibility from the Florida
Drycleaning Solvent Cleanup Program, which provides for the costs of cleanup of
the site to be borne by the Florida Hazardous Waste Management Trust Fund,
subject to payment of a deductible by the borrower of $10,000. A reserve in the
amount of the deductible was funded at closing.
Loan No. 6104149 (Tri-Main Center) and Loan Xx. 0000000 (Xxxxx Xxxxx Xxxxx) -
Each of the Borrowers under these Mortgage Loans were required to provide
secured creditor environmental insurance policies for the benefit of the lender
and its successors.
2. Representation #14 - Insurance.
Loan Xx. 0000000 (Xxxxxxx Xxxxxx) - Xxxxx the related Mortgaged Property is
located in a flood zone, a Flood Elevation Certificate has been included on the
related survey reflecting that the material improvements on the Mortgaged
Property are all located a elevations above the flood level xxxx. The only
improvements below the flood level elevation are paving, curb cuts and sewer
drainage structures.
3. Representation #22 - Legal Proceedings.
Loan No. 6103916 (Edward's Ground Lease Portfolio) - This loan was made to Trail
Properties, LLC (the "Borrower"), and is secured by the fee interest in certain
property located in Newport Beach, California, which property is the subject of
two long-term ground leases. The ground lessee under one of the ground leases
(the "Xxxxxxx Ground Lease") is Xxxxxxx Theatres Circuit, Inc., which together
with a number of its affiliates, was the subject of a Chapter 11 bankruptcy
proceeding in the United States Bankruptcy Court for the Central District of
California, Santa Xxx Division, Case No. SA 00-16475-LR. On September 24, 2001,
the Court issued an Order (the "Order") Confirming Debtors' Second Amended Plan
of Reorganization (July 23, 2001) (the "Plan").
The Order provided in Paragraphs G and H on page 11 that certain contracts and
leases identified in Schedule 2 to the Order were to be assumed and assigned to
the entity which will emerge from the bankruptcy ("New Xxxxxxx"), and that New
Xxxxxxx would pay certain specified "cure amounts" upon the effective date of
the Plan. The Xxxxxxx Ground Lease was specified on Exhibit 2 (page 33 of 42) as
one of the leases to be so assumed and assigned, and a cure amount of $17,411.18
was to be paid to the Borrower upon the effective date.
Pursuant to the Order, the effective date of the Plan was slated to occur when
(1) all conditions to Plan confirmation have been satisfied and the confirmation
order has been issued; (2) certain recapitalization and refinancing arrangements
have been finalized; and (3) a cash reserve in a specified amount has been
established. The Order (which has been issued, as noted above) expressly
provided in Paragraph G on page 14 that all conditions to confirmation had been
satisfied, and in Paragraph 15 on page 17 that the required recapitalization and
refinancing arrangements had been finalized and approved by the Court.
The Borrower has indicated that the effective date of the Plan was September 28,
2001, and has been asked to provide confirmation that the required cure payment
was received, and a copy of the notice of the effective date when it is
received.
4. Representation #23 - Other Mortgage Liens.
Loan No. 6103916 (Xxxxxxx Ground Lease Portfolio) - The related Mortgaged
Property constitutes a portion of a subdivision development which is encumbered
by certain covenants, conditions and restrictions ("CC&Rs") which bind present
and future users of such property. The declarant under the CC&Rs has certain
rights similar to mortgage foreclosure rights to recover unreimbursed damages or
losses suffered by the declarant in the event the Borrower violates the CC&Rs,
provided, however, that such rights are subordinate to the Mortgage and any
foreclosure would be subject to the Mortgage. The related Title Policy includes
an endorsement insuring that there were no violations of the CC&Rs as of the
policy date.
5. Representation #41 - Assignment of Collateral.
Loan No. 6104236 (Outrigger Reef) - In connection with this Mortgage Loan, which
will be part of the Trust Fund, and two additional loans to related parties
which are not part of the Trust Fund (the "Other Loans" and collectively with
the specified Mortgage Loan, the "Outrigger Loans"), Seller obtained a single
letter of credit (the "Outrigger LC") to secure, among other things, the
borrowers' obligation under the Outrigger Loans to maintain the blanket
commercial general liability insurance coverage covering all of the related
properties with a carrier which has a certain minimum credit rating. While the
Outrigger LC will not be transferred to the Purchaser, the Purchaser will assume
certain rights retained by Seller pursuant to a servicing agreement which may
provide benefits to the Purchaser or the holder of the Other Loans as well as
the Purchaser, in the event of a default and a draw on the Outrigger LC.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
FOUR XXXXXXX XXXXXX, 0XX XXXXX
000 XXXXXXXX XXXXXX
XXXXXX, XXX XXXXXX 00000
INDEMNITY AGREEMENT
WHEREAS, Prudential Mortgage Capital Funding, LLC ("PMCF") intends
to contribute the mortgage loan secured by the mortgaged property (the
"Property") commonly known as the Outrigger Reef Hotel (such mortgage loan, the
"Outrigger Loan") to the trust (the "Trust") that will issue the commercial
mortgage-pass through certificates contemplated to be designated as the Banc of
America Commercial Mortgage, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-PB1 (the "Certificates"). In connection with such
contribution, PMCF has agreed to provide a specified indemnity to the Trust, for
the benefit of the holders of certain of the Certificates.
AGREEMENT
NOW THEREFORE, PMCF hereby agrees as follows:
With respect to the Outrigger Loan, if, during the period commencing
on November 6, 2001 and ending on November 6, 2003 (such period, the "Indemnity
Trigger Period"), the related borrower (the "Borrower") shall fail to make any
monthly debt service payment or other payment due under the Outrigger Loan and
such payment default shall not be cured by the Borrower (an "Uncured Default"),
and thereafter, as a result of such Uncured Default, a liquidation of the
Outrigger Loan or of the related REO Property occurs (the "Outrigger Liquidation
Event"), PMCF shall indemnify the Trust (the "Indemnification") for the benefit
of the holders of the Certificates, per their respective entitlements to
prepayment premiums, if any, as set forth in Section 4.01(c) of the Pooling and
Servicing Agreement governing the Trust, for the Prepayment Premium (as defined
below) which is due and payable in connection with the Outrigger Liquidation
Event, to the extent not covered by the proceeds thereof; provided, however,
that in no event shall the amount payable by PMCF pursuant to such
Indemnification exceed $7,179,100 (which amount is equal to 10% of the
outstanding principal balance of the Outrigger Loan as of October 1, 2001). The
Indemnification shall apply whether or not the Outrigger Liquidation Event
occurs during the Indemnity Trigger Period so long as the Uncured Default giving
rise to such Outrigger Liquidation Event occurred during the Indemnity Trigger
Period. Notwithstanding anything to the contrary contained in the preceding two
sentences, if at any time on or after March 6, 2003 (the "Coverage Test
Commencement Date"), the Debt Service Coverage Ratio based on a rolling historic
annualized three (3) month period shall be 1.65x or greater, then the
Indemnification shall be deemed to have terminated, and shall thereafter be null
and void, and PMCF shall have no further obligations under the Indemnification.
From and after the Coverage Test Commencement Date, the Master Servicer shall
calculate the Debt Service Coverage Ratio on a monthly basis.
As used above, "Prepayment Premium" means the Prepayment Premium, as
such term is defined in the promissory note evidencing the Outrigger Loan, and
"Debt Service Coverage Ratio" shall mean the ratio of (i) the Property's net
operating income, which shall mean the gross income realized from operations of
the Property less all necessary and ordinary operating expenses (including,
without limitation, utilities, landscaping, janitorial and cleaning services,
management fees, repairs, reserves, real estate taxes and other assessments,
ground rent payment and insurance, but excluding any deduction for federal,
state and other income taxes, debt service expense, depreciation, or
amortization of capital expenditures, and other similar non-cash items) to (ii)
the principal and interest payments due and payable under the Outrigger Loan, as
reasonably calculated by the Master Servicer using figures obtained or derived
from certified financial statements provided by the Borrower.
This indemnity agreement will be governed and construed in
accordance with the internal laws of the State of New York.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: /S/
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Principal
Executed as of November 6, 2001
