EXHIBIT 99.1
Bank of America Mortgage Loan Purchase and Sale Agreement
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this
"Agreement") is dated and effective as of October 12, 2004, between Bank of
America, N.A., as seller (the "Seller" or "Bank of America") and Banc of America
Commercial Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser desires to purchase, subject to the
terms and conditions set forth below, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Schedule I (the "Mortgage Loan Schedule") except that the Seller will retain the
master servicing rights (the "Servicing Rights") with regard to the Mortgage
Loans in its capacity as Master Servicer (as defined below) and shall enter into
certain Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the
Pooling and Servicing agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i)
the Mortgage Loans and (ii) certain mortgage loans transferred by Bear Xxxxxxx
Commercial Mortgage, Inc. ("BSCMI") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between BSCMI and the
Purchaser, to a trust (the "Trust") created pursuant to the Pooling and
Servicing Agreement (as defined below). Beneficial ownership of the assets of
the Trust (such assets collectively, the "Trust Fund") will be evidenced by a
series of commercial mortgage pass-through certificates (the "Certificates").
Certain classes of the Certificates will be rated by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. and/or Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of October 1, 2004 (the "Pooling and Servicing Agreement"), among BACM,
as depositor, Bank of America, N.A., as master servicer (the "Master Servicer"),
Midland Loan Services, Inc., as special servicer (the "Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, the "Trustee")
and as REMIC administrator 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"), Bear, Xxxxxxx & Co Inc. ("BSCI"),
Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") and Greenwich Capital Markets, Inc.
("Greenwich") (collectively, the "Underwriters") pursuant to an underwriting
agreement, dated as of September 30, 2004 (the "Underwriting Agreement"). BACM
intends to sell certain of the remaining Classes of Certificates (the
"Non-Registered Certificates") to Banc of America and BSCI, as initial
purchasers (together the "Initial Purchasers"), pursuant to a certificate
purchase agreement dated as of September 30, 2004 (the "Certificate Purchase
Agreement"), among BACM, Banc of America and BSCI. BACM intends to place certain
other of the remaining Classes of Certificates (the "Privately Placed
Certificates") to Banc of America, as private placement agent (the "Private
Placement Agent"), pursuant to a private placement agency agreement dated as of
September 30, 2004 (the "Private Placement Agency Agreement"), between BACM and
Banc of America. The Registered Certificates are more fully described in the
prospectus dated September 30, 2004 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated September 30, 2004 (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"), as each may be
amended or supplemented at any time hereafter. The Non-Registered Certificates
are more fully described in three private placement memoranda, each dated
September 30, 2004 (the "Memoranda"), as they may be amended or supplemented at
any time hereafter.
The Seller will indemnify the Underwriters, the Initial
Purchasers and certain related parties with respect to certain disclosure
regarding the Mortgage Loans and contained in the Prospectus, the Memoranda and
certain other disclosure documents and offering materials relating to the
Certificates, pursuant to an indemnification agreement, dated as of October 1,
2004 (the "Indemnification Agreement"), among the Seller, the Purchaser, the
Underwriters and the Initial Purchasers.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to
purchase the Mortgage Loans. The closing for the purchase and sale of the
Mortgage Loans shall take place on the Closing Date. The purchase price for the
Mortgage Loans shall be $998,273,053.97, which amount includes interest accrued
on the Mortgage Loans on or after the Cut-off Date and which amount shall be
payable on or about October 12, 2004 in immediately available funds. The
Purchaser shall be entitled to all interest accrued on the Mortgage Loans on and
after the Cut-off Date and all principal payments received on the Mortgage Loans
after the Cut-off Date except for principal and interest payments due and
payable on the Mortgage Loans on or before the Cut-off Date, which shall belong
to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof and satisfaction of the
other conditions set forth herein, the Seller will transfer, assign, set over
and otherwise convey to the Purchaser, without recourse, but subject to the
terms and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date, the Seller shall deliver or
cause to be delivered to the Purchaser or, if so directed by the Purchaser, to
the Trustee or a custodian designated by the Trustee (a "Custodian"), the
Mortgage File with respect to each of the Mortgage Loans; provided that the
Purchaser hereby directs the Seller to prepare and the Seller shall prepare or
cause to be prepared (or permit the Purchaser to prepare) with respect to the
Mortgage Loans, the assignments of Mortgage, assignments of Assignment of Leases
and UCC financing statements on Form UCC-2 or UCC-3, as applicable, from the
Seller in favor of the Trustee (in such capacity) or in blank. The Seller shall
at its expense, within 45 days after the Closing Date or, in the case of a
Replacement Mortgage Loan, after the related date of substitution, unless
recording/filing information is not available by such time for assignments
solely due to recorder's office delay, in which case such submission shall be
made promptly after such information does become available from the recorder's
office, submit or cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment referred to in the immediately
preceding sentence. 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 Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(f) If the Seller is unable to deliver or cause the delivery
of any original Mortgage Note, it may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and indemnity, and shall thereby be deemed
to have satisfied the document delivery requirements of Section 2(e). If the
Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, the delivery
requirements of Section 2(e) shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File. If the Seller cannot or does not so deliver, or cause to
be delivered, as to any Mortgage Loan, the original of any of the documents
and/or instruments referred to in clauses (iv) and (v) of the definition of
"Mortgage File" in the Pooling and Servicing Agreement, because such document or
instrument has been delivered for recording or filing, as the case may be, the
delivery requirements of Section 2(e) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(e) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan.
(g) [Reserved].
(h) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(i) If and when the Seller is notified of or discovers any
error in the Mortgage Loan Schedule attached to this Agreement as to which a
Mortgage Loan is affected, the Seller shall promptly amend the Mortgage Loan
Schedule and distribute such amended Mortgage Loan Schedule to the parties to
the Pooling and Servicing Agreement; provided, however, that the correction or
amendment of the Mortgage Loan Schedule by itself shall not be deemed to be a
cure of a Material Breach.
(j) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser
in exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review.
The Seller shall reasonably cooperate with an examination of
the Mortgage Files and Servicing Files for the Mortgage Loans that may be
undertaken by or on behalf of the Purchaser. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of such
Mortgage Files and/or Servicing Files shall not affect the Purchaser's (or any
other specified beneficiary's) right to pursue any remedy available hereunder
for a breach of the Seller's representations and warranties set forth in Section
4, subject to the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby represents and warrants to and for the
benefit of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly
authorized, validly existing and in good standing under the laws of
United States of America.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of Seller's obligations under this
Agreement, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, which default or
breach, in the Seller's good faith and commercially reasonable judgment
is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or its financial
condition.
(iii) The Seller has the full power and authority to enter
into and perform its obligations under this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the Seller's knowledge,
threatened against the Seller which if determined adversely to the
Seller would prohibit the Seller from entering into this Agreement, or
in the Seller's good faith and reasonable judgment, would be likely to
materially and adversely affect either the ability of the Seller to
perform its obligations under this Agreement or the financial condition
of the Seller.
(vii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or governmental
agency or body is required for the consummation by the Seller of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed, and
except for those filings and recordings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing
Agreement to be completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (including the BC Pari Passu Note A-1 Mortgage Loan and the XX Xxxx Passu
Note A-1 Mortgage Loan, if applicable) (each, a "Defective Mortgage Loan") at
the related Purchase Price in accordance with the terms hereof and the terms of
the Pooling and Servicing Agreement; provided that if the Seller certifies in
writing to the Purchaser (i) that any such Material Breach or Material Document
Defect, as the case may be, does not and will not cause the Defective Mortgage
Loan, to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the REMIC Provisions, (ii) that such Material Breach or Material
Document Defect, as the case may be, is capable of being corrected or cured but
not within the applicable Initial Resolution Period, (iii) that the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within the applicable Initial
Resolution Period, and (iv) that the Seller anticipates that such Material
Breach or Material Document Defect, as the case may be, will be corrected or
cured within an additional period not to exceed the Resolution Extension Period
(as defined below), then the Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such correction or cure or,
failing such, to repurchase the Defective Mortgage Loan; and provided, further,
that, if the Seller's obligation to repurchase any Defective Mortgage Loan as a
result of a Material Breach or Material Document Defect arises within the
three-month period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the Defective Mortgage Loan is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-2(f)), the Seller may, at its option, in lieu
of repurchasing such Defective Mortgage Loan (except in the case of the BC Pari
Passu Note A-1 Mortgage Loan and the XX Xxxx Passu Note A-1 Mortgage Loan) (but,
in any event, no later than such repurchase would have to have been completed),
(i) replace such Defective Mortgage Loan with one or more substitute mortgage
loans that individually and collectively satisfy the requirements of the
definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling and
Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall
Amount, such substitution and payment to be effected in accordance with the
terms of the Pooling and Servicing Agreement. Any such repurchase or replacement
of a Defective Mortgage Loan shall be on a whole loan basis. The Seller shall
have no obligation to monitor the Mortgage Loans regarding the existence of a
Material Breach or Material Document Defect, but if the Seller discovers a
Material Breach or Material Document Defect with respect to a Mortgage Loan, it
will notify the Purchaser. For purposes of remediating a Material Breach or
Material Document Defect with respect to any Mortgage Loan, "Resolution
Extension Period" shall mean the 90-day period following the end of the
applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Crossed-Collateralized Mortgage
Loan or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Crossed-Collateralized Mortgage Loan and to each other Mortgaged
Property included in such portfolio and the Seller shall repurchase or
substitute for any related Crossed-Collateralized Mortgage Loan in the manner
described above unless, in the case of a Material Breach or Material Document
Defect, both of the following conditions would be satisfied if the Seller were
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph: (i) the
debt service coverage ratio for any remaining Cross-Collateralized Mortgage
Loans or Mortgaged Properties for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the greater of (a) the
debt service coverage ratio immediately prior to the repurchase, and (b) 1.25x
and (ii) the loan-to-value ratio for any remaining Crossed-Collateralized
Mortgage Loans or Mortgaged Properties is not greater than the lesser of (a) the
loan-to-value ratio immediately prior to the repurchase, and (b) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Crossed-Collateralized Mortgage Loan or Mortgaged Properties as to
which the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the related Mortgage Loan Seller
repurchases or substitutes for an affected Cross-Collateralized Mortgage Loan or
Mortgaged Property in the manner prescribed above while the Trustee continues to
hold any related Cross-Collateralized Mortgage Loans, the related Mortgage Loan
Seller and the Depositor have agreed in the related Mortgage Loan Purchase and
Sale Agreement to uncross the repurchased Cross-Collateralized Mortgage Loan or
affected property; provided the Depositor has received a tax opinion that
uncrossing the repurchased Cross-Collateralized Mortgage Loan will not adversely
affect the status of any of REMIC I, REMIC II or the Component Mortgage Loan
REMIC as a REMIC under the Code.
Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c), the Seller shall
(i) deliver the related Mortgage File for each such substitute mortgage loan to
the Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or
replaced as contemplated by this Section 4, the Seller shall amend the Mortgage
Loan Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
The Seller's obligation to cure any Material Breach or
Material Document Defect or repurchase or substitute any affected Mortgage Loan
or Mortgaged Property pursuant to this Section 4(c) constitute the sole remedies
available to the Purchaser in connection with a breach of any of the Seller's
representations and warranties contained in Section 4(b) and it is acknowledged
and agreed that those representations and warranties are being made for risk
allocation purposes only.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or governmental
agency or body is required for the consummation by the Purchaser of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed, and
except for those filings of Mortgage Loan documents and assignments
thereof that are contemplated by the Pooling and Servicing Agreement to
be completed after the Closing Date.
(iii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
agreement by the Purchaser, will not violate the Purchaser's
certificate of incorporation or by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iv) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(vi) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the
Purchaser has received service of process or, to the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m.,
Charlotte time, on the Closing Date.
The Closing shall be subject to each of the following
conditions, which can only be waived or modified by mutual consent of the
parties hereto.
(i) All of the representations and warranties of the Seller
and of the Purchaser specified in Sections 4 and 5 hereof shall be true
and correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon and
reasonably acceptable to the Purchaser and Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the
Purchaser, the Trustee or a Custodian, or the Master Servicer shall
have received to hold in trust pursuant to the Pooling and Servicing
Agreement, as the case may be, all documents and funds required to be
so delivered pursuant to Sections 2(c), 2(d) and 2(e) hereof;
(iv) [Reserved];
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or
agreed to pay all fees, costs and expenses payable to the Purchaser or
otherwise pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with
its terms.
Both parties agree to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and
can only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the
Purchaser and the Seller, and the Pooling and Servicing Agreement, duly executed
and delivered by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer
of the Seller, in his or her individual capacity, and dated the Closing Date,
upon which the Underwriters, and BACM may rely, attaching thereto as exhibits
the organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive
officer or authorized signatory of the Seller and dated the Closing Date, and
upon which the Purchaser, the Underwriters and the Initial Purchasers may rely
to the effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to
such reasonable assumptions and qualifications as may be requested by counsel
for the Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers, and each
Rating Agency any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the
respective parties thereto; and
(j) One or more comfort letters from the Accountants dated the
date of any preliminary Prospectus Supplement, Prospectus Supplement and
Memoranda respectively, and addressed to, and in form and substance acceptable
to the Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memoranda stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, compared the results of
their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, and found
each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memoranda, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 or to such other addresses as may hereafter be
furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser or, at the direction of the
Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their permitted successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller
agreed to be made hereby shall be, and be construed as a sale by the Seller of
all of the Seller's right, title and interest in and to the Mortgage Loans. It
is, further, not intended that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller, as the case may be. However, in the event that
notwithstanding the intent of the parties, the Mortgage Loans are held to be
property of the Seller, or if for any reason this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then it is intended that, (i)
this Agreement shall also be deemed to be a security agreement within the
meaning of Article 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (ii) the conveyance
provided for in this Section shall be deemed to be a grant by the Seller to the
Purchaser of a security interest in all of its right (including the power to
convey title thereto), title and interest, whether now owned or hereafter
acquired, in and to (A) the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof (other then scheduled payments of interest and principal due on or
before the Cut-off Date) and (C) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, whether in the form of cash, instruments, securities or other
property. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement. In connection
herewith, the Purchaser shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement
sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are superseded by
this Agreement. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 21. Waiver of Trial by Jury.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or
the Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Property Name
------ ----------- -------------
1 58326 Arbors of Watermark
2 58329 The Promenade at Mission Viejo
3 9974 Twin Creeks Apartments
4 58395 XXXX Xxxxxxxxx
0 00000 Xxxxxxxxx Apartments
6.1 40284 Henridge Apartments
6.2 40284 Xxxxxx Court Apartments
6.3 40284 Xxxxxxxxxxx Xxxxx Xxxxxxxxxx
0 00000 Xxxxxxxxxx Portfolio (Roll Up)
7 58260 Breckenridge Apartments
8 6835 Euclid Xxxxxxx Apartments
9 40931 000 Xxxxxxxx Xxxxxx
10 41035 0000 Xxxxxxxxx Xxxxxx
11 9323 Lion's Way Apartments
12 58322 Xxxxxxx Xxxxxxx Xxxxxxxxxx
00 00000 Xxxxxxxxxxxx Halls
14 0000 Xxxxxxxxx Xxxxxxxxxx XX
00 00000 Xxxx Grande Apartments
16 10009 Winston Apartment Complex
17 6979 The Xxxxxxxx Apartments
18 8811 Hillside Xxxxx
19 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
00 00000 Xxxxx - Xxxx Xxxxx Mall
21 57564 0000 Xxxxxxxx Xxxx
22 39342 Santa Xxxx Xxxx
00 00000 Xxxxxxxxxxx Xxxxx
24.1 00000 Xxxxxxxx Xxxxx
24.2 00000 Xxxxxxxxx Xxxxx
24.3 00000 Xxxxx Xxxx Xxxxxxx
24.4 39789 Xxxxxxx Xxxxx
00 00000 XX-Xxxxx Portfolio (Roll Up)
25 58298 Xxxxx - Xxxxxxxx Xxxxx
00 00000 Xxxx Xxxxx Plaza
27.1 40390 Heritage Towne Crossing
27.2 40390 Xxxxxx Xxxxxx
27.3 40390 Xxxxxx Xxxxxx
27 40390 Inland Southwest Portfolio (Roll Up)
28 00000 Xxxxxxxxx Xxxxx
29 57951 Xxxxxx Xxxxxxx Xxxxx
00 00000 Plaza at Xxxxxxxxxx
00 00000 Xxxxx Xxxxxx Xxxx Center
32 00000 Xxxxxxxxx Xxxxxx
33 57534 The Center at Coldwater
34 58150 Xxxxxxx Xxxxxxx Xxxxxxx
00 00000 Xxxxxxx Xxxxxxx
36 39154 Xxxxx Station Center
37.1 41196 Eckerd - Kill Devil Hills, NC
37.2 00000 Xxxxxx - Xxxxxxxx, XX
37.3 00000 Xxxxxx - Xxxxx, XX
37.4 00000 Xxxxxx - Xxxxxxxxxx, XX
37 41196 Inland Eckerd Portfolio (Roll Up)
38 58109 19th and Xxxxxxxx
00 00000 Xxxxxxxx Xxxxxxxxx
40 58039 Stonebridge Crossing
41 00000 Xxxxxxxxx Xxxxx
00 00000 Xxxxxxxxxx Plaza
43 40704 Xxxxxxxx Xxxxxxx
00 0000 Xxxxxxx Retail Center
45 57810 Xxxxxxx Xxxxxx
00 0000 Xxxxxx Marketplace
47 41195 Center Pointe Shopping Xxxxxx
00 00000 Xxxx Xxxxxx Shopping Center
49 57981 East Lake Shopping Center
50 9639 Dallas Retail Center - Dallas, Oregon
51 9125 Abbeville Shopping Xxxxxx
00 00000 Xxxxx Xxxx XX Shopping Center
53 0000 Xxxx Xxxxxxxx Retail Shops
54 58399 Bank of America Center
55.1 39141 0000 Xxxxxxxxx Xxxxx Xxxxx
55.2 39141 0000 Xxxxxxxxx Xxxxx Xxxxx
55.3 39141 10734 Xxxxxxxxxxxxx Xxxxx
00 00000 Xxxxxxxxx Xxxxxxxxx X (Roll Up)
56 58035 FCB Worldwide Xxxxxxxx
00 00000 Xxxxxxxx Xxxxx
58 58123 Xxx Xxxx Xxxxxxxxx Xxxxxx XX
00 00000 Xxxxxxxx Business Center
60 58185 2601 Xxxxxxx Xxxxxxxxx
00 00000 Xxxxxxxx Xxxx Place
62.1 57825 508 Medical Center
62.2 57825 506 Medical Center
62.3 57825 Medical Center Atrium
62 57825 506 Medical Center, 508 Medical Center, & Medical Center Atrium (Roll Xx)
00 00000 Xxxxxx Center Office II
64 39802 000 Xxxxxxx Xxxxxx
65 58168 Grass Valley
66 58072 Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxxxx VA Clinic
68 9129 Xxxxxxx Xxxxxxx Xxxxxxxx
00 00000 Xxxxx Xxxxx Medical Office Building
70 58164 Mayflower Center
71 57820 One Xxxxxx Xxxxxxx Xxxxx
00 00000 Xxx Xxxx Medical Center
73 58096 Xxxx Xxxxxxxx Xxxxxx
00 00000 Xxxxxxxxx Xxxxxxxx Xxxx
75 9244 1334 Xxxxx Xxxxxx
00 00000 Viewpoint Office Xxxxxxx
00 0000 Xxxxxxxx Service Center
78 0000 Xxxxx Xxxxxx Xxxxxx
79 57884 Grandview Medical Office Xxxxxxxx
00 0000 Xxxxxxx Xxxxx Office
81 57882 Southern Hills Xxxxxxx Xxxxxx Xxxxxxxx X
00 00000 Precision Park
83 41399 Wrangler Company
84 39914 Kraft Food Warehouse
85 58208 Sun Communities - Buttonwood Bay
86 58210 Sun Communities - Xxxxxxx
87 58330 Sun Communities - Pine Ridge
88 58209 Sun Communities - Maplewood
Sub-Total Crossed Loans
89.1 58230 Sun Communities Portfolio 12 - Meadowbrook Village
89.2 58230 Sun Communities Portfolio 12 - Grand Village
89.3 58230 Sun Communities Portfolio 12 - Brentwood Village
89.4 58230 Sun Communities Portfolio 12 - Xxxxxx
89 58230 Sun Communities Portfolio 12 (Roll Up)
90 58231 Sun Communities - Catalina
Sub-Total Crossed Loans
91.1 58211 Xxx Xxxxxxxxxxx Xxxxxxxxx 0 - Xxxxxxxx Xxxxx
91.2 58211 Sun Communities Portfolio 2 - Creekwood Xxxxxxx
91.3 58211 Sun Communities Portfolio 2 - Xxxxxx
91.4 58211 Sun Communities Portfolio 2 - Richmond Place
91 58211 Sun Communities Portfolio 2 (Roll Up)
92 58289 Xxxxx Portfolio - Town and Country
93 00000 Xxxxx Xxxxxxxxx - Xxxxxxxx Xxxxxxx
94 58281 Xxxxx Xxxxxxxxx - Xxxxxxxx Xxxxx
00 00000 Xxxxx Portfolio - Xxx Xxxx Xxxxxxx
00 0000 Xxxx Xxxx Xxxxxxx MHC
97 58320 Dallas Market Center
98.1 58028 Extra Space Storage - Weymouth
98.2 58028 Extra Space Storage - Stockton
98.3 58028 Extra Space Storage - Northborough
98.4 58028 Extra Space Storage - Whittier
98.5 58028 Extra Space Storage - Xxxx
98 58028 Extra Space Storage - ESPIV Portfolio (Roll Xx)
00 00000 Xxxxx Xxxxxx Self Storage
100 58142 Laurel Canyon Self Storage
101.1 57979 Western
101.2 57979 Blackburn
101.3 57979 Britain
101 57979 Amarillo All Storage Center Portfolio (Roll Up)
102 58098 All Aboard Self Storage
103 57911 Shurgard - San Xxxx Creek
104 9269 Southpoint Self-Storage
105 9652 Classic Storage Station
106 10050 Storage Depot - McAllen
107 8650 Attic Self Storage-Monroe
108 8465 Best Western Seattle
Total
Sequence
Number Street Address City State
------ -------------- ---- -----
1 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX
2 00000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX
3 11230-11450 SE Sunnyside Road Clackamas OR
4 00000 Xxxxx Xxxx Xxxxxx XX
5 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX
6.1 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX
6.2 0000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX
6.3 000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX
6 Various Philadelphia PA
7 000 Xxxxxxx Xxxxxx Xxxxxxxx XX
8 00000 Xxxxxx Xxxxxx Xxxxxx XX
9 000 Xxxxxxxx Xxxxxx Xxxxx XX
10 0000 Xxxxxxxxx Xxxxxx Xxxxx XX
11 00000 Xxxxxxxxx Xxxxx Xxxxxxx XX
12 0000 Xxxxxx Xxxxx Xxxxxxxxxxxx XX
13 0000-0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
14 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX
15 0000 Xxx Xxxx Xxxxxx Xxxxxxxxxxxx XX
16 0000 XxxxxXxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX
17 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxx XX
18 0000 Xxxxxxxx Xxxxx Xxxxxxxxx XX
19 0000 Xxxxx 00xx Xxxxxx Xxxxxxxx XX
20 0000 X.X. Xxxxxxxxx Xxxx Xxxxxx XX
21 0000 Xxxxxxxx Xxxx and 0000 Xxx Xxxxxxx Xxxx Xxxxxx XX
22 000 Xxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxx XX
23 0000-00000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx XX
24.1 000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx XX
24.2 0000 Xxxxxx Xxxx Xxxxxxxxx MD
24.3 0000 Xxxx Xxxxxxx Xxxxxxx Xxxxx Xxxx XX
24.4 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
24 Various Various Various
25 000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX
26 0000-0000 Xxxx Xxxxxx Xxxxxxxx XX
27.1 0000 Xxxx Xxxxx Xxxx & 0000 Xxxxx Xxxxxxx 000 Xxxxxx XX
27.2 0000 Xxxx Xxxxxxxx Xxxxxx XX
27.3 0000 Xxxx Xxxxxxxx Xxxxxx XX
27 Various Various Various
28 000 Xxxxx Xxxxxx Xxxxxxxxx XX
29 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX
30 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX
31 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX
32 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX
33 00000-00 Xxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX
34 0000-0000 Xxxxxxx Xxxx Xxxxxxx XX
35 0000-0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx Xxxx XX
36 00 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxxxx XX
37.1 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxx Xxxxx XX
37.2 0000 Xxxxx Xxxxx Xxxx Xxxxxxxx XX
37.3 0000 Xxxx Xxxx Xxxxxxx Xxxx Xxxxx XX
37.4 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
37 Various Various Various
38 1849,1855 and 0000 Xxxx Xxxxxxxx Xxxxxxx XX
39 0000-0000 Xxxxxxxx Xxxx Xxxxx XX
40 6700, 6710 and 0000 Xxxxxxxx Xxxxxxx XxXxxxxx XX
41 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX
42 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX
43 4203 and 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx XX
44 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX
45 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX
46 000-000 Xxxx Xxxxx Xxxxxx Xxxxxx XX
47 6525 & 0000 Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX
48 0000-0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxx XX
49 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX
50 000-000 Xxxx Xxxxxxxxx Xxxxxx and 000-000 Xxxx Xxxxxx Xxxxxx XX
51 0000 Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxx XX
52 0000 Xxxxxxxx Xxxx Xxxxxx XX
53 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX
54 000 Xxxxxxxxxx Xxxxxx, 000 Xxxxxxxxxx Xxxxxx, and 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX
55.1 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxx XX
55.2 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxx XX
55.3 00000 Xxxxxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx XX
55 Various Various CA
56 00000 Xxxxxxxx Xxxxxx Xxxxxx XX
57 0000 Xxxxxxxx Xxxxxx & 0000 Xxxxx Xxxxxx Xxxxxxxx XX
58 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX
59 5431 Xxxxxx Xxxxx Lane, 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx XX
60 0000 Xxxxxxx Xxxxxxxxx Xxxxxx XX
61 0000 Xxxx Xxxxxx Xxxxxx XX
62.1 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX
62.2 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX
62.3 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX
62 Various Conroe TX
63 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
64 000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX
65 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxx Xxxx XX
66 0000 XX 00xx Xxxxxx Xxxxx XX
67 0000 XxXxxx Xxxx Xxxxxxxxx XX
68 000 Xxxxx Xxxxxxxxx Xxxxxxxx XX
69 0000 Xxxxx Xxxxxxxx Xxxx Xxxxx Xxxxxxxx Xxxxx XX
70 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX
71 00000 Xxxx Xxxxxxx Xxxxx Xxxxxx XX
72 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxx XX
73 00000 Xxxx Xxxx Xxxxxx Xxxx xx Xxxxxxxx XX
74 265,277, 000 Xxxxx Xxxxxx and 000 Xxxxxx Xxxxxx Xxx Xxxx Xxxxxx XX
75 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx XX
76 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx XX
77 00000 Xxxxxxxx Xxxxx Xxxxxxx XX
78 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxx XX
79 0000 Xxxxxxx 00 Xxxxxx XX
80 0 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX
81 000 Xxxxxxx Xxxx Xxxxxxxxx XX
82 000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX
83 00000 Xxxxx Xxxxx Xx Xxxx XX
84 000 00xx Xxxxxx XX Xxxxx Xxxx XX
85 00000 Xxxxxxx 00 Xxxxx Xxxxxxx XX
86 00 Xxxxxxxx Xxxxxx Nappanee IN
87 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX
88 00000 Xxxxxxxxx Xxxx Xxxxxxxx IN
89.1 0000 Xxxxxxx Xxxx Xxxxx XX
89.2 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx Xxxxxx XX
89.3 000 00xx Xxxxxx XX Xxxxx Xxxxxx XX
89.4 0000 Xxx Xxxxx Xxxx Xxxxxxxxxxx XX
89 Various Various Various
90 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX
91.1 000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxxx XX
91.2 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX
91.3 00000 Xxxx Xxxxxx Xxxx Xxxx Xxxxx XX
91.4 00000 Xxxxxxxx Xxxx Xxxxxxxx XX
91 Various Various Various
92 000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxxxx XX
93 00000 Xxxxx Xxxxxxxx Xxxx Xxxxx Xxxx XX
94 27 West 000 Xxxxxx Xxxx Xxxx Xxxxxxx XX
95 000 Xxxxx Xxxxxx Xxxxx XX
96 0000 XX 000xx Xxxxxx Xxxxxxxx XX
97 0000 Xxxxxxxx Xxxxxxx Xxxxxx XX
98.1 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxx XX
98.2 00 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX
98.3 000 Xxxx Xxxxxx Xxxxxxxxxxxx XX
98.4 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx XX
98.5 000 Xxxxxxx Xxxx XX
98 Various Various Various
99 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX
100 00000 Xxxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxxx XX
101.1 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX
101.2 0000 Xxxxxxxxx Xxxxxx Xxxxxxxx XX
101.3 0000 Xxxxxxx Xxxxx Xxxxxxxx XX
000 Xxxxxxx Xxxxxxxx XX
102 0000 Xxxxxx Xxxxxx Xxxxxxxx XX
103 00000 Xxx Xxxx Xxxxx Xxxx Xxx Xxxx Xxxxxxxxxx XX
104 700 - 000 Xxxxxxxx Xxxxx Xxxxx Xxxx XX
105 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX
106 0000 Xxxxx 00xx Xxxxxx XxXxxxx XX
107 000 Xxxxxx Xxxxx Xxxx Xxxxxx XX
108 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX
Sequence
Number Zip Code Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance
------ -------- ----------------- ----------------- ---------------- ---------------
1 43215 5.147% ACT/360 $26,000,000 $25,942,802
2 92692 5.700% ACT/360 24,000,000 24,000,000
3 97015 5.745% ACT/360 12,000,000 11,976,783
4 75287 4.980% ACT/360 11,000,000 11,000,000
5 45245 5.140% ACT/360 10,600,000 10,576,646
6.1 19128 4,100,000 4,072,141
6.2 19128 2,800,000 2,780,975
6.3 19128 2,000,000 1,986,410
6 19128 4.469% ACT/360 8,900,000 8,839,526
7 45324 5.550% ACT/360 7,500,000 7,484,859
8 44132 5.802% ACT/360 6,300,000 6,287,963
9 10456 5.901% ACT/360 4,600,000 4,587,449
10 10458 5.901% ACT/360 4,600,000 4,587,449
11 70401 5.954% ACT/360 4,140,000 4,132,352
12 78660 5.817% ACT/360 3,820,000 3,809,372
13 17111 5.115% ACT/360 3,520,000 3,500,634
14 28405 6.308% ACT/360 2,980,000 2,977,204
15 32210 5.800% ACT/360 2,560,000 2,556,191
16 97205 5.700% ACT/360 2,010,000 2,007,881
17 76309 6.401% ACT/360 1,849,612 1,820,632
18 53018 6.076% ACT/360 1,700,000 1,696,944
19 53132 5.940% ACT/360 1,400,000 1,396,215
20 66604 5.890% ACT/360 68,710,962 68,710,962
21 22182 5.940% ACT/360 44,000,000 43,622,666
22 32569 5.416% ACT/360 42,500,000 42,411,692
23 99218 4.285% 30/360 30,850,000 30,850,000
24.1 12061 9,800,000 9,800,000
24.2 21236 8,400,000 8,400,000
24.3 21901 6,750,000 6,750,000
24.4 12205 5,765,000 5,765,000
24 Various 4.736% ACT/360 30,715,000 30,715,000
25 44512 5.940% ACT/360 23,597,562 23,597,562
26 66046 5.085% 30/360 14,700,000 14,700,000
27.1 76039 8,950,000 8,950,000
27.2 73072 2,900,000 2,900,000
27.3 73003 1,850,000 1,850,000
27 Various 4.374% 30/360 13,700,000 13,700,000
28 19464 4.773% ACT/360 12,400,000 12,400,000
29 92373 5.626% ACT/360 12,250,000 12,176,303
30 98270 5.085% 30/360 11,800,000 11,800,000
31 29406 4.760% 30/360 11,050,000 11,050,000
32 16319 4.975% 30/360 10,900,000 10,900,000
33 91604 6.100% ACT/360 9,249,902 9,224,639
34 76021 5.800% ACT/360 9,050,000 9,050,000
35 94523 5.790% ACT/360 8,000,000 7,977,603
36 32218 4.742% ACT/360 8,000,000 7,932,854
37.1 27948 1,975,000 1,975,000
37.2 29210 1,750,000 1,750,000
37.3 29650 1,650,000 1,650,000
37.4 38555 1,425,000 1,425,000
37 Various 5.275% 30/360 6,800,000 6,800,000
38 85023 6.289% ACT/360 6,750,000 6,733,206
39 33314 4.322% 30/360 6,400,000 6,400,000
40 75071 6.226% ACT/360 6,192,921 6,171,279
41 03801 4.600% ACT/360 6,000,000 5,955,313
42 45066 4.111% 30/360 5,510,000 5,510,000
43 27407 4.222% 30/360 5,450,000 5,450,000
44 17111 6.073% ACT/360 5,500,000 5,439,076
45 19963 6.040% ACT/360 5,400,000 5,332,546
46 22180 6.204% ACT/360 4,800,000 4,787,810
47 29640 5.320% 30/360 4,250,000 4,250,000
48 37160 5.968% ACT/360 4,250,000 4,234,263
49 76543 5.630% ACT/360 4,000,000 3,975,956
50 97338 5.978% ACT/360 2,450,000 2,443,296
51 70510 6.700% ACT/360 1,544,765 1,541,044
52 76502 5.740% ACT/360 1,350,000 1,342,076
53 37760 6.702% ACT/360 1,000,000 997,592
54 94104 4.867% ACT/360 150,000,000 150,000,000
55.1 95678 10,500,000 10,380,551
55.2 95678 9,400,000 9,293,064
55.3 95670 8,100,000 8,007,853
55 95678 5.570% ACT/360 28,000,000 27,681,468
56 92614 5.710% ACT/360 20,355,000 20,355,000
57 20814 5.614% ACT/360 17,250,000 17,250,000
58 84121 4.995% ACT/360 17,250,000 17,192,313
59 33634 5.132% ACT/360 16,800,000 16,670,016
60 75034 6.092% ACT/360 16,113,700 16,084,839
61 75205 5.203% ACT/360 15,225,000 15,225,000
62.1 77304 6,090,000 6,041,135
62.2 77304 5,950,000 5,902,258
62.3 77304 2,100,000 2,083,150
62 77304 5.743% ACT/360 14,140,000 14,026,543
63 94520 5.844% ACT/360 14,000,000 13,932,770
64 94111 4.950% ACT/360 13,000,000 12,826,852
65 95959 6.062% ACT/360 8,520,000 8,501,695
66 33173 5.798% ACT/360 8,400,000 8,367,706
67 99508 5.743% ACT/360 7,210,000 7,152,148
68 99352 5.856% ACT/360 6,468,750 6,450,915
69 76180 5.743% ACT/360 6,222,494 6,172,565
70 32714 6.112% ACT/360 6,100,000 6,089,123
71 75251 5.743% ACT/360 6,090,000 6,041,135
72 78412 5.116% ACT/360 5,894,000 5,840,229
73 91745 6.150% ACT/360 5,175,000 5,158,617
74 93401 6.000% ACT/360 5,000,000 4,995,022
75 90401 5.994% ACT/360 4,000,000 3,992,676
76 89123 6.260% ACT/360 3,600,000 3,590,980
77 77099 5.787% ACT/360 3,200,000 3,190,952
78 92660 6.116% ACT/360 2,445,604 2,436,843
79 37347 5.116% ACT/360 2,403,282 2,381,357
80 98403 5.331% ACT/360 1,800,000 1,790,548
81 37211 5.116% ACT/360 1,038,537 1,029,062
82 02852 6.310% ACT/360 21,500,000 21,252,588
83 79936 5.090% 30/360 11,300,000 11,300,000
84 50401 5.390% 30/360 5,333,000 5,333,000
85 33876 5.320% ACT/360 21,984,005 21,984,005
86 46550 5.320% ACT/360 7,360,000 7,360,000
87 23875 5.320% ACT/360 6,000,000 6,000,000
88 46236 5.320% ACT/360 4,640,000 4,640,000
39,984,005 39,984,005
89.1 33635 7,303,188 7,303,188
89.2 49548 6,740,000 6,740,000
89.3 49548 6,320,000 6,320,000
89.4 48892 5,200,000 5,200,000
89 Various 5.320% ACT/360 25,563,188 25,563,188
90 45042 5.320% ACT/360 9,593,686 9,593,686
35,156,874 35,156,874
91.1 17603 17,710,525 17,710,525
91.2 48519 8,160,000 8,160,000
91.3 33908 5,360,000 5,360,000
91.4 48062 3,680,000 3,680,000
91 Various 4.931% ACT/360 34,910,525 34,910,525
92 60018 5.521% ACT/360 10,962,952 10,962,952
93 60087 5.521% ACT/360 7,252,706 7,252,706
94 60185 5.521% ACT/360 5,417,941 5,417,941
95 60120 5.521% ACT/360 4,738,925 4,738,925
96 97024 6.193% ACT/360 3,100,000 3,094,573
97 75207 6.097% ACT/360 66,000,000 65,903,426
98.1 02189 4,640,000 4,640,000
98.2 95207 3,240,000 3,240,000
98.3 01532 2,608,000 2,608,000
98.4 90606 2,544,000 2,544,000
98.5 01905 2,480,000 2,480,000
98 Various 4.856% ACT/360 15,512,000 15,512,000
99 23113 6.220% ACT/360 8,000,000 7,979,762
100 91340 5.650% ACT/360 8,000,000 7,965,816
101.1 79110 4,275,000 4,237,071
101.2 79109 1,650,000 1,635,361
101.3 79109 1,275,000 1,263,688
101 Various 5.580% ACT/360 7,200,000 7,136,120
102 94804 5.751% ACT/360 5,325,000 5,304,316
103 92675 5.730% ACT/360 4,775,000 4,761,445
104 95407 5.338% ACT/360 4,400,000 4,400,000
105 77584 5.530% ACT/360 1,800,000 1,794,683
106 78504 6.200% ACT/360 1,762,500 1,759,419
107 71291 6.730% ACT/360 1,350,000 1,345,262
108 98105 6.276% ACT/360 11,000,000 10,971,427
$1,296,027,784
Sequence Remaining Term To Stated Maturity
Number Stated Maturity (months) Date Due Date Monthly Payment
------ ------------------------ ---- -------- ---------------
1 58 8/1/2009 1 $141,919
2 119 9/1/2014 1 139,296
3 118 8/1/2014 1 69,991
4 59 9/1/2009 1 0
5 58 8/1/2009 1 57,813
6.1
6.2
6.3
6 54 4/1/2009 1 43,736
7 58 8/1/2009 1 42,820
8 118 8/1/2014 1 36,973
9 57 7/1/2009 1 27,287
10 57 7/1/2009 1 27,287
11 118 8/1/2014 1 24,699
12 117 7/1/2014 1 22,455
13 55 5/1/2009 1 19,144
14 143 9/1/2016 1 18,461
15 119 9/1/2014 1 16,183
16 119 9/1/2014 1 11,666
17 108 10/1/2013 1 12,375
18 142 8/1/2016 1 10,276
19 141 7/1/2016 1 8,340
20 117 7/1/2014 1 407,110
21 111 1/1/2014 1 262,107
22 82 8/1/2011 1 239,075
23 57 7/1/2009 1 110,160
24.1
24.2
24.3
24.4
24 54 4/1/2009 1 159,965
25 117 7/1/2014 1 140,570
26 58 8/1/2009 1 62,291
27.1
27.2
27.3
27 55 5/1/2009 1 49,937
28 54 4/1/2009 1 64,856
29 114 4/1/2014 1 70,526
30 58 8/1/2009 1 50,003
31 57 7/1/2009 1 43,832
32 58 8/1/2009 1 45,190
33 170 12/1/2018 1 56,446
34 116 6/1/2014 1 53,101
35 117 7/1/2014 1 46,889
36 53 3/1/2009 1 41,693
37.1
37.2
37.3
37.4
37 58 8/1/2009 1 29,892
38 117 7/1/2014 1 41,732
39 56 6/1/2009 1 23,051
40 116 6/1/2014 1 38,034
41 54 4/1/2009 1 30,759
42 80 6/1/2011 1 18,876
43 56 6/1/2009 1 19,175
44 168 10/1/2018 1 33,234
45 111 1/1/2014 1 34,924
46 117 7/1/2014 1 29,411
47 82 8/1/2011 1 18,842
48 116 6/1/2014 1 25,394
49 114 4/1/2014 1 23,039
50 118 8/1/2014 1 15,752
51 118 8/1/2014 1 10,624
52 114 4/1/2014 1 7,870
53 118 8/1/2014 1 6,879
54 83 9/1/2011 1 0
55.1
55.2
55.3
55 73 11/1/2010 1 160,213
56 57 7/1/2009 1 0
57 117 7/1/2014 1 0
58 57 7/1/2009 1 92,546
59 77 3/1/2011 1 91,546
60 118 8/1/2014 1 97,565
61 80 6/1/2011 1 83,630
62.1
62.2
62.3
62 112 2/1/2014 1 82,457
63 116 6/1/2014 1 85,999
64 52 2/1/2009 1 75,618
65 119 9/1/2014 1 61,345
66 116 6/1/2014 1 49,277
67 112 2/1/2014 1 42,045
68 117 7/1/2014 1 38,187
69 112 2/1/2014 1 36,286
70 118 8/1/2014 1 37,013
71 112 2/1/2014 1 35,514
72 52 2/1/2009 1 32,058
73 117 7/1/2014 1 32,546
74 119 9/1/2014 1 29,978
75 118 8/1/2014 1 23,967
76 117 7/1/2014 1 22,189
77 118 8/1/2014 1 20,203
78 116 6/1/2014 1 14,846
79 52 2/1/2009 1 13,072
80 115 5/1/2014 1 10,030
81 52 2/1/2009 1 5,649
82 107 9/1/2013 1 133,219
83 58 8/1/2009 1 47,931
84 58 8/1/2009 1 23,954
85 141 7/1/2016 1 122,351
86 141 7/1/2016 1 40,962
87 141 7/1/2016 1 33,393
88 141 7/1/2016 1 25,824
89.1
89.2
89.3
89.4
89 141 7/1/2016 1 142,271
90 141 7/1/2016 1 53,393
91.1
91.2
91.3
91.4
91 81 7/1/2011 1 185,934
92 57 7/1/2009 1 62,388
93 57 7/1/2009 1 41,273
94 57 7/1/2009 1 30,832
95 57 7/1/2009 1 26,968
96 178 8/1/2019 1 18,972
97 119 9/1/2014 1 415,095
98.1
98.2
98.3
98.4
98.5
98 80 6/1/2011 1 81,915
99 117 7/1/2014 1 49,101
100 117 7/1/2014 1 49,846
101.1
101.2
101.3
101 114 4/1/2014 1 44,559
102 116 6/1/2014 1 31,079
103 117 7/1/2014 1 27,805
104 117 7/1/2014 1 0
105 58 8/1/2009 1 11,086
106 118 8/1/2014 1 10,795
107 117 7/1/2014 1 9,310
108 118 8/1/2014 1 72,741
Sequence Primary Servicing Master Servicing
Number Administrative Fee Rate Fee Rate Fee Rate
------ ----------------------- -------- --------
1 0.112% 0.100% 0.010%
2 0.112% 0.100% 0.010%
3 0.062% 0.050% 0.010%
4 0.112% 0.100% 0.010%
5 0.112% 0.100% 0.010%
6.1
6.2
6.3
6 0.032% 0.010% 0.020%
7 0.112% 0.100% 0.010%
8 0.072% 0.060% 0.010%
9 0.032% 0.010% 0.020%
10 0.032% 0.010% 0.020%
11 0.082% 0.070% 0.010%
12 0.082% 0.070% 0.010%
13 0.032% 0.010% 0.020%
14 0.082% 0.070% 0.010%
15 0.062% 0.050% 0.010%
16 0.062% 0.050% 0.010%
17 0.042% 0.030% 0.010%
18 0.092% 0.080% 0.010%
19 0.092% 0.080% 0.010%
20 0.032% 0.020% 0.010%
21 0.112% 0.100% 0.010%
22 0.082% 0.060% 0.020%
23 0.032% 0.010% 0.020%
24.1
24.2
24.3
24.4
24 0.032% 0.010% 0.020%
25 0.032% 0.020% 0.010%
26 0.032% 0.010% 0.020%
27.1
27.2
27.3
27 0.032% 0.010% 0.020%
28 0.032% 0.010% 0.020%
29 0.112% 0.100% 0.010%
30 0.032% 0.010% 0.020%
31 0.032% 0.010% 0.020%
32 0.032% 0.010% 0.020%
33 0.112% 0.100% 0.010%
34 0.112% 0.100% 0.010%
35 0.112% 0.100% 0.010%
36 0.072% 0.050% 0.020%
37.1
37.2
37.3
37.4
37 0.032% 0.010% 0.020%
38 0.072% 0.060% 0.010%
39 0.032% 0.010% 0.020%
40 0.072% 0.060% 0.010%
41 0.032% 0.010% 0.020%
42 0.032% 0.010% 0.020%
43 0.032% 0.010% 0.020%
44 0.042% 0.030% 0.010%
45 0.112% 0.100% 0.010%
46 0.062% 0.050% 0.010%
47 0.032% 0.010% 0.020%
48 0.112% 0.100% 0.010%
49 0.112% 0.100% 0.010%
50 0.062% 0.050% 0.010%
51 0.092% 0.080% 0.010%
52 0.112% 0.100% 0.010%
53 0.092% 0.080% 0.010%
54 0.042% 0.030% 0.010%
55.1
55.2
55.3
55 0.032% 0.010% 0.020%
56 0.052% 0.040% 0.010%
57 0.112% 0.100% 0.010%
58 0.112% 0.100% 0.010%
59 0.112% 0.100% 0.010%
60 0.112% 0.100% 0.010%
61 0.112% 0.100% 0.010%
62.1
62.2
62.3
62 0.112% 0.100% 0.010%
63 0.112% 0.100% 0.010%
64 0.032% 0.010% 0.020%
65 0.112% 0.100% 0.010%
66 0.112% 0.100% 0.010%
67 0.112% 0.100% 0.010%
68 0.062% 0.050% 0.010%
69 0.112% 0.100% 0.010%
70 0.072% 0.060% 0.010%
71 0.112% 0.100% 0.010%
72 0.112% 0.100% 0.010%
73 0.112% 0.100% 0.010%
74 0.062% 0.050% 0.010%
75 0.062% 0.050% 0.010%
76 0.112% 0.100% 0.010%
77 0.062% 0.050% 0.010%
78 0.062% 0.050% 0.010%
79 0.112% 0.100% 0.010%
80 0.062% 0.050% 0.010%
81 0.112% 0.100% 0.010%
82 0.112% 0.100% 0.010%
83 0.032% 0.010% 0.020%
84 0.032% 0.010% 0.020%
85 0.112% 0.100% 0.010%
86 0.112% 0.100% 0.010%
87 0.112% 0.100% 0.010%
88 0.112% 0.100% 0.010%
89.1
89.2
89.3
89.4
89 0.112% 0.100% 0.010%
90 0.112% 0.100% 0.010%
91.1
91.2
91.3
91.4
91 0.112% 0.100% 0.010%
92 0.112% 0.100% 0.010%
93 0.112% 0.100% 0.010%
94 0.112% 0.100% 0.010%
95 0.112% 0.100% 0.010%
96 0.062% 0.050% 0.010%
97 0.042% 0.030% 0.010%
98.1
98.2
98.3
98.4
98.5
98 0.112% 0.100% 0.010%
99 0.112% 0.100% 0.010%
100 0.112% 0.100% 0.010%
101.1
101.2
101.3
101 0.112% 0.100% 0.010%
102 0.112% 0.100% 0.010%
103 0.112% 0.100% 0.010%
104 0.062% 0.050% 0.010%
105 0.062% 0.050% 0.010%
106 0.062% 0.050% 0.010%
107 0.062% 0.050% 0.010%
108 0.062% 0.050% 0.010%
Sequence
Number Ownership Interest Crossed Original Amortization (months)
------ ------------------ ------- ------------------------------
1 Fee No 360
2 Leasehold No 360
3 Fee No 360
4 Fee No 0
5 Fee No 360
6.1 Fee No
6.2 Fee No
6.3 Fee No
6 Fee No 360
7 Fee No 360
8 Fee No 360
9 Fee No 360
10 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
13 Fee No 360
14 Fee No 360
15 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 300
18 Fee/Leasehold No 360
19 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
22 Fee No 360
23 Fee No 0
24.1 Fee No
24.2 Fee No
24.3 Fee No
24.4 Fee No
24 Fee No 360
25 Fee No 360
26 Fee No 0
27.1 Fee No
27.2 Fee No
27.3 Fee No
27 Fee No 0
28 Fee No 360
29 Fee No 360
30 Fee No 0
31 Fee No 0
32 Fee No 0
33 Fee/Leasehold No 353
34 Fee No 360
35 Fee No 360
36 Fee No 360
37.1 Fee No
37.2 Fee No
37.3 Fee No
37.4 Fee No
37 Fee No 0
38 Fee No 360
39 Fee No 0
40 Fee No 360
41 Fee No 360
42 Fee No 0
43 Fee No 0
44 Fee No 360
45 Fee No 300
46 Fee No 360
47 Fee/Leasehold No 0
48 Fee No 360
49 Fee No 360
50 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
53 Fee No 300
54 Fee No 0
55.1 Fee No
55.2 Fee No
55.3 Fee No
55 Fee No 360
56 Fee No 0
57 Fee No 0
58 Fee No 360
59 Fee No 360
60 Fee No 360
61 Fee No 360
62.1 Fee/Leasehold No
62.2 Fee/Leasehold No
62.3 Fee/Leasehold No
62 Fee/Leasehold No 360
63 Fee No 324
64 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
67 Fee/Leasehold No 360
68 Leasehold No 360
69 Fee/Leasehold No 360
70 Fee No 360
71 Fee No 360
72 Fee/Leasehold No 360
73 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
76 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
79 Fee/Leasehold No 360
80 Fee No 360
81 Fee/Leasehold No 360
82 Fee No 360
83 Fee Xx 0
00 Xxx Xx 0
00 Xxx Xxx(XXXX 04-4-SUN P1) 360
86 Fee Yes(BACM 04-4-SUN P1) 360
87 Fee Yes(BACM 04-4-SUN P1) 360
88 Fee Yes(BACM 04-4-SUN P1) 360
89.1 Fee Yes(BACM 04-4-SUN P12)
89.2 Fee Yes(BACM 04-4-SUN P12)
89.3 Fee Yes(BACM 04-4-SUN P12)
89.4 Fee Yes(BACM 04-4-SUN P12)
89 Fee Yes(BACM 04-4-SUN P12) 360
90 Fee Yes(BACM 04-4-SUN P12) 360
91.1 Fee No
91.2 Fee No
91.3 Fee No
91.4 Fee No
91 Fee No 360
92 Fee No 360
93 Fee Xx 000
00 Xxx Xx 000
00 Xxx Xx 360
96 Fee No 360
97 Leasehold No 330
98.1 Fee No
98.2 Fee No
98.3 Fee No
98.4 Fee/Leasehold No
98.5 Fee No
98 Fee/Leasehold No 360
99 Fee No 360
100 Fee No 300
101.1 Fee No
101.2 Fee No
101.3 Fee No
101 Fee No 300
102 Fee No 360
103 Fee No 360
104 Fee No 0
105 Fee No 300
106 Fee No 360
107 Fee No 300
108 Fee No 300
Sequence
Number ARD Loan Grace Period Loan Group
------ -------- ------------ ----------
1 No 5 2
2 No 5 2
3 No 5 1
4 No 10 2
5 No 10 2
6.1 2
6.2 2
6.3 2
6 No 5 2
7 No 10 2
8 Xx 0 0
0 Xx 0 0
00 Xx 5 2
11 Xx 0 0
00 Xx 0 0
00 Xx 5 2
14 Xx 0 0
00 Xx 0 0
00 Xx 5 2
17 No 10 2
18 Xx 0 0
00 Xx 0 0
00 Xx 5 1
21 Xx 00 0
00 Xx 0 0
00 Xx 5 1
24.1 1
24.2 1
24.3 1
24.4 1
24 Xx 0 0
00 Xx 0 0
00 Xx 5 1
27.1 1
27.2 1
27.3 1
27 Xx 0 0
00 Xx 0 0
00 Xx 10 1
30 Xx 0 0
00 Xx 0 0
00 Xx 5 1
33 No 10 1
34 Xx 00 0
00 Xx 00 0
00 Xx 5 1
37.1 1
37.2 1
37.3 1
37.4 1
37 Xx 0 0
00 Xx 00 0
00 Xx 5 1
40 No 10 1
41 Xx 0 0
00 Xx 0 0
00 Xx 5 1
44 No 10 1
45 No 10 1
46 Xx 0 0
00 Xx 0 0
00 Xx 10 1
49 Xx 00 0
00 Xx 0 0
00 Xx 5 1
52 Xx 00 0
00 Xx 0 0
00 Xx 0 1
55.1 1
55.2 1
55.3 1
55 Xx 0 0
00 Xx 00 0
00 Xx 5 1
58 No 10 1
59 Xx 00 0
00 Xx 0 0
00 Xx 10 1
62.1 1
62.2 1
62.3 1
62 Xx 00 0
00 Xx 00 0
00 Xx 5 1
65 Yes 5 1
66 No 10 1
67 No 10 1
68 Xx 0 0
00 Xx 00 0
00 Xx 5 1
71 No 10 1
72 Xx 00 0
00 Xx 00 0
00 Xx 5 1
75 No 10 1
76 Xx 0 0
00 Xx 0 0
00 Xx 7 1
79 No 10 1
80 Xx 0 0
00 Xx 00 0
00 Xx 10 1
83 Yes 5 1
84 Yes 5 1
85 No 5 2
86 Xx 0 0
00 Xx 0 0
00 Xx 5 2
89.1 2
89.2 2
89.3 2
89.4 2
89 No 5 2
90 No 5 2
91.1 1
91.2 1
91.3 1
91.4 1
91 Xx 0 0
00 Xx 0 0
00 Xx 0 1
94 No 0 1
95 Xx 0 0
00 Xx 0 0
00 Xx 5 1
98.1 1
98.2 1
98.3 1
98.4 1
98.5 1
98 Xx 00 0
00 Xx 0 0
000 Xx 10 1
101.1 1
101.2 1
101.3 1
101 Xx 00 0
000 Xx 0 0
000 Xx 10 1
104 Xx 0 0
000 Xx 0 0
000 Xx 5 1
107 No 5 1
108 Yes 5 1
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Schedule II
Representations and Warranties with respect to the Mortgage Loans
-----------------------------------------------------------------
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances. The
Seller has validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance; provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
provided, if the related assignment of Mortgage and/or assignment of Assignment
of Leases has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (except in the case of a Mortgage Loan
maintained on the records of MERS, including endorsement and delivery of the
related Mortgage Note to the Purchaser and recording of the related Assignment
of Mortgage in favor of Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary including,
without limitation, foreclosure or similar proceedings (as applicable for the
jurisdiction where the related Mortgaged Property is located) and, subject to
the exceptions set forth in Paragraph 13 below, enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least 12 months. If any portion of the improvements on a
Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Federal Emergency Management Agency ("FEMA") as a special flood hazard
area (Zone A or Zone V) (an "SFH Area"), and flood insurance was available and
was required to be maintained by FEMA, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without thirty (30) days' prior written notice to the mortgagee; and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured. For each Mortgaged Property located in a Zone 3 or Zone 4
seismic zone, either: (i) a seismic report which indicated a PML of less than
20% was prepared, based on a 450 or 475-year look back with a 10% probability of
exceedance in a 50-year period, at origination for such Mortgaged Property or
(ii) the improvements for the Mortgaged Property are insured against earthquake
damage. If the Mortgaged Property is located in Florida or within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina or
South Carolina such Mortgaged Property is insured by windstorm insurance in an
amount at least equal to the lesser of (i) the outstanding principal balance of
such Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged Property.
With respect to each Mortgage Loan that has a principal balance as of the
origination date that is greater than or equal to $20,000,000, the related all
risk insurance policy and business interruption policy do not specifically
exclude acts of terrorism from coverage. With respect to each other Mortgage
Loan, the related all risk insurance policy and business interruption policy did
not as of the date of origination of the Mortgage Loan, and, to the Seller's
knowledge, does not as of the date hereof, specifically exclude acts of
terrorism from coverage. With respect to each of the Mortgage Loans, the related
Mortgage Loan documents do not expressly waive or prohibit the mortgagee from
requiring coverage for acts of terrorism or damages related thereto, except to
the extent that any right to require such coverage may be limited by
commercially reasonable availability. With respect to each Mortgage Loan, the
related Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Mortgage Loan provides that
proceeds paid under any such casualty insurance policy will (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). At origination, the Seller received evidence that each Mortgaged
Property was insured by a commercial general liability policy in an amount not
less than $1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the subject
Mortgage Loan no Borrower under a Mortgage Loan was a debtor in any state or
federal bankruptcy, insolvency or similar proceeding. As of the Closing Date, to
the Seller's knowledge, no Borrower under a Mortgage Loan was a debtor in any
state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised, would
cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a curable default
of the lessee under such Ground Lease following notice thereof from
the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (a) the satisfaction of certain legal and underwriting requirements, (b)
the payment of a release price and, if required by the related Mortgage Loan
documents, prepayment consideration in connection therewith or (c) the
substitution of real property collateral upon the satisfaction of certain legal
and underwriting requirements; and provided, further, that any Mortgage Loan may
permit the unconditional release of one or more unimproved parcels of land to
which the Seller did not give any material value in underwriting the Mortgage
Loan. The release provisions in any Mortgage Loan if exercised would not cause
such Mortgage Loan to fail to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance in an amount to make all
scheduled payments under the Mortgage Note (a) no earlier than two years
following the Closing Date and (b) only with substitute collateral constituting
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. To Seller's knowledge there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan, in any such case to the extent the same
materially and adversely affects the value of the Mortgage Loan and the related
Mortgaged Property; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in this Schedule II
or by the exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions set forth in the related
Mortgage, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy or pollution legal liability policy, then the Seller has delivered or
caused to be delivered to the insurer under such policy copies of all
environmental reports in the Seller's possession related to such Mortgaged
Property to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage Loans by
the Seller or a sub-servicer retained by the Seller has been legal, proper and
prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; provided, if the related security agreement and/or UCC
Financing Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the Seller
shall take all actions as are necessary to cause the Trust to be shown as the
owner of the Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination and to the Seller's knowledge as of the Cut-off Date,
each Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
SCHEDULE IIA
------------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
-------------------------------------------------
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
---------------------------------------------
REPRESENTATION 6
Mortgage Status; Waivers and Modifications.
-------------------------------------------
The Promenade at Mission Viejo (58329) The related Loan Agreement has been
modified to amend the definition
of "Operating Income".
REPRESENTATION 10
Mortgage Provisions.
--------------------
506 Medical Center, 508 Medical Center The related mortgage note does
and Medical Center Atrium (57825) not contain an addendum with
respect to the "maximum legal
0000 Xxxxxxx Xxxxxxxxx (58185) rate of interest" even though
the related mortgaged property
is located in the State of
Texas.
Bank of America Center (58399) The non-recourse guaranty is not a
separate document even though the
property is located in the State of
California.
REPRESENTATION 12
Environmental Conditions.
-------------------------
Bank of America Center (58399) The soil and groundwater of the
Mortgaged Property has been
contaminated due to petroleum leaks
from underground storage formerly
located on the Mortgaged Property that
belonged to the City and County of San
Francisco ("San Francisco"). The prior
owner of the Mortgaged Property, 000
Xxxxxxxxxx Xxxxxx LLC, initiated an
action against San Francisco in
relation to such contamination which
resulted in a Settlement Agreement and
Mutual Release dated December 10, 2003
by and between San Francisco and 000
Xxxxxxxxxx Xxxxxx LLC (the "Settlement
Agreement").
Pursuant to the terms of the Settlement
Agreement, San Francisco is required to
provide remediation and monitoring
results (which the related borrower is
required to provide to the mortgagee)
until such time as there are four
consecutive quarters of acceptable
remediation and monitoring results.
The related borrower is required
enforce San Francisco's obligations to
monitor and remediate the contamination
pursuant to the terms of the Settlement
Agreement.
The related borrower is required to use
commercially reasonable efforts deliver
to mortgagee a letter from the City and
County of San Francisco Department of
Health - Local Oversight Program which
will indicate that monitoring and
remediation is no longer required under
the Settlement Agreement.
REPRESENTATION 13
Loan Document Status.
---------------------
Woodmont Plaza (58175) The mortgaged property is in Maryland
and the loan was structured as an
Indemnity Deed of Trust (IDOT). The
managing member of the related borrower
retained title to the mortgaged
property and, as such, borrower did not
execute the related mortgage. The
related borrower executed the related
note.
REPRESENTATION 14
Insurance.
----------
Sun Communities - Buttonwood Bay (58208) Terrorism insurance is limited to the
lesser of (a) $5,000,000.00 or (b) the
amount of coverage the related borrower
Sun Communities - Maplewood (58209) could obtain by paying 200% of the
insurance premiums allocable to
terrorism insurance as of the Closing
Sun Communities - Xxxxxxx (58210) Date.
Sun Communities Portfolio 2 (58211)
Sun Communities Portfolio 12 (58230)
Sun Communities - Pine Ridge (58330)
Sun Communities - Catalina (58231)
REPRESENTATION 17
Local Law Compliance.
---------------------
Beaumont Business Center (57921) Approximately 24 individual
certificates of occupancy were not
provided for review, however the
related loan documents provide recourse
liability for any losses suffered by
lender due to the related borrower's
failure to deliver such certificates of
occupancy.
Xxxxx - Xxxxxxxx Plaza (58298) The related mortgaged property is
non-conforming as to parking. The
related zoning report notes that the
lot was recently resurfaced and
sufficient space was available to meet
the applicable zoning law requirements;
however sufficient spaces had not yet
been striped. 2,459 parking spaces are
required plus 1 for each 2 employees
and the lot currently contains 2,243
spaces.
REPRESENTATION 18
Leasehold Estate Only.
----------------------
Extra Space - Whittier The related lessor consented to an
assignment to a trustee in a
Extra Space - Northborough securitization in the estoppel. The
related lessor's consent to an
Extra Space - Stockton assignment is not required if the
assignee has a net worth and
Extra Space - Weymouth creditworthiness equal to at least that
of the related borrower. All other
Extra Space - Xxxx (00000) xxxxxxx assignments require consent
which the lessor agrees not to
unreasonably withhold.
REPRESENTATION 26
Licenses and Permits.
---------------------
Beaumont Business Center (57921) Approximately 24 individual
certificates of occupancy were not
provided for review, however the
related loan documents provide recourse
liability for any losses suffered by
lender due to the related borrower's
failure to deliver such certificates of
occupancy.
Xxxxx - Xxxxxxxx Plaza (58298) Approximately 24 individual
certificates of occupancy were not
provided for review, however the
related loan documents provide recourse
liability for any losses suffered by
lender due to the related borrower's
failure to deliver such certificates of
occupancy.
REPRESENTATION 28
Releases of Mortgaged Properties.
---------------------------------
Simon - West Ridge Mall (58295) The related borrower is permitted to
substitute the related mortgaged
Xxxxx - Xxxxxxxx Plaza (58298) property for other retail property
provided certain conditions are
satisfied, including that the
substitute property has an appraised
value of 110% of the released property,
net operating income shall be 115% of
the net operating income of the
released property, and delivery of a
rating agency confirmation. The related
borrower is also permitted to release
non-income generating portions of the
related mortgaged property without
lender's consent to governmental
agencies (condemnations/dedications)
and third parties (e.g. pad site owners
and out parcel owners) or grant
easements to such non-income producing
property for the purpose of erecting
and operating additional structures
whose use is integrated and consistent
with the use of the mortgaged property.
Dallas Market Center (58320) The related borrower may release the
"Garage Parcels" provided certain
conditions are satisfied, including
receipt of a no-down grade letter and a
REMIC opinion. The "Garage Parcels"
were not assigned any value in
underwriting.
Sun Communities - Buttonwood Bay (58208) In connection with a defeasance, the
related borrower is required to provide
defeasance collateral in an amount
Sun Communities - Maplewood (58209) necessary to pay scheduled principal
and interest through the related
lock-out date and the outstanding
Sun Communities - Xxxxxxx (58210) principal balance of the related
Mortgage Loan following the expiration
of the related lock-out period.
Sun Communities Portfolio 2 (58211)
Sun Communities Portfolio 12 (58230)
Sun Communities - Pine Ridge (58330)
Sun Communities - Catalina (58231)
REPRESENTATION 37
Tax Parcels.
------------
Sun Communities Portfolio 2 (58211) All properties constituting the related mortgaged
property are not separate tax parcels. The related
borrower is required to obtain separate tax parcel
Sun Communities Portfolio 12 (58230) identifications within 120 days of the closing date, or
if later, at least 30 days prior to the next tax
billing date.
Simon - West Ridge Mall (58295) The related mortgaged property will be assessed for
real estate purposes as a wholly independent lot upon
the next assessment. The related borrower has
represented that it has taken all steps necessary to
effectuate the separation of the property for real
estate tax purposes.
North Hills Medical Office Building (57819) The related loan agreement provides that as soon as
practicable, the related mortgagor shall use
commercially reasonable efforts to cause the mortgaged
Grandview Medical Office Building (57884) property to be designated as one or more independent
tax lots. If the related mortgagor delivers evidence to
the related mortgage loan seller that the separation of
Southern Hills Medical Office Building A (57882) tax lots would create a stated increase in taxes, then
such mortgagor will not be required to have the related
mortgaged property separately designated
Bay Area Medical Center (57847) However there are tax lot guaranties and a letter of credit
that address the issue and shall remain in effect.
The tax lot guaranties cover both the Mortgage Loans and
related loans not part of the loan sale.
REPRESENTATION 42
Recourse.
---------
506 Medical Center, 508 Medical Center and Medical Center There is no borrower principal for these loans.
Atrium (57825)
Grandview Medical Office Building (57884)
Southern Hills Medical Center (57882)
Bay Area Medical Center (57847)
One Forest Medical Plaza (57820)
North Hills Medical Office Building (57819)
Alaska VA Clinic (57856)
FCB Worldwide Building (58035)
Simon - West Ridge Mall (58295)
Xxxxx - Xxxxxxxx Plaza (58298)
Snapper Creek Medical Office Building (58702)
Shurguard - San Xxxx Creek (57911)
Dallas Market Center (58320)
Stonebridge Crossing (58039)
19th & Greenway (58109)
0000 Xxxxxxxx Xxxx (57564) The borrower principal is an entity for these loans.
Sun Communities - Buttonwood Bay (58208)
Sun Communities - Maplewood (58209)
Sun Communities - Xxxxxxx (58210)
Sun Communities Portfolio 2 (58211)
Sun Communities Portfolio 12 (58230)
Sun Communities - Pine Ridge (58330)
Sun Communities - Catalina (58231)
Xxxxxxx Central Village (58150)
Grass Valley (58168)
0000 Xxxxxxx Xxxxxxxxx (58185)
Mane Street Shopping Center (58089)
Amarillo All Storage Center Portfolio (57979) The related borrower and borrower principal are only
liable for environmental obligations to the extent that
either has actively participated in or caused or
East Lake Shopping Center (57981) actively consented to (or recklessly disregarded the
actions of any person who actively participated in or
caused) any of the actions or conditions covered by the
South Loop II Shopping Center (57982) indemnity.
REPRESENTATION 40.
Operating Statements.
Sun Communities - Buttonwood Bay (58208) The annual financial statements of Sun Communities,
Inc. are the only financial statements which are
required to be audited. The related borrower is
Sun Communities - Maplewood (58209) required to provide a balance sheet and operating
statements for each separate parcel but is not required
to provide annual financial statements each separate
Sun Communities - Xxxxxxx (58210) parcel.
Sun Communities Portfolio 2 (58211)
Sun Communities Portfolio 12 (58230)
Sun Communities - Pine Ridge (58330)
Sun Communities - Catalina (58231)
SCHEDULE IIA
REP EXCEPTIONS FOR THE BRIDGER MORTGAGE LOANS
Exception 12 - Environmental Conditions:
----------------------------------------
With respect to the Best Western Seattle Mortgage Loan, a sampling
performed by URS (the environmental consultant for the Mortgaged Property's
previous owner) in December 2003 as part of continuing long-term groundwater
monitoring revealed concentrations of certain contaminants in two of five
monitoring xxxxx on the Mortgaged Property that exceeded the maximum levels and
subjected the Mortgaged Property to regulatory action. Based on the contaminant
concentrations present and the general downward trend of detected concentrations
on the Mortgaged Property, the lender's environmental consultant considered a
requirement to actively remediate the Mortgaged Property to be unlikely and
estimated that groundwater samplings would indicate clear results within the
next eight calendar quarters, at which time a closure letter could be requested
from the Washington Department of Energy. A reserve of $31,250 was created to
cover recommended continued monitoring costs (which amount represents 125% of
the estimated monitoring costs).
Exception 14 - Insurance:
-------------------------
With respect to the Casa Grande Apartments Mortgage Loan, the related
all-risk insurance policy and business interruption policy excludes acts of
terrorism from coverage.
Exception 18 - Leasehold Estate Only:
-------------------------------------
With respect to the Corrado Medical Building Mortgage Loan, the Borrower's
interest in the Ground Lease, after being acquired pursuant to a foreclosure,
deed in lieu of foreclosure or other proceeding, may be assigned without the
consent of the lessor provided that the proposed assignee (a) is not a
competitor of the lessor and, (b) if it intends to finance its acquisition of
the Borrower's interest in the Ground Lease, demonstrates to the lessor that
such financing will satisfy a specified debt service coverage ratio.
Exception 21 - No Equity Interest, Equity Participation or Contingent Interest:
-------------------------------------------------------------------------------
The Best Western Seattle 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, unless otherwise determined by the
lender, all payments shall be applied, in the following order of priority,
to: (i) amounts, other than principal and interest, due under the Mortgage
Loan documents; (ii) operating expenses for the Mortgaged Property; (iii)
extraordinary expenses; (iv) interest and additional interest due on the
Mortgage Loan; and (v) the principal balance of the Mortgage Loan.
Exception 23 - Other Mortgage Liens:
------------------------------------
The Hillside Xxxxx Apartments Mortgage Loan is secured by the Borrower's
leasehold interest and the Fee Interest owned by Meridian Hillside, LLC
("Meridian"), in the related Mortgage Property and does not prohibit Meridian
from encumbering its Fee Interest with a mortgage lien. However, the terms of
the related Ground Lease provide that Meridian may not encumber or cause to be
encumbered its Fee Interest except to a lender that expressly assumes and/or
agrees to be bound by the terms of the Ground Lease.
Exception 28 - Releases of Mortgaged Properties:
------------------------------------------------
The Mortgaged Property securing the Attic Self Storage Mortgage Loan
includes the Borrower's leasehold interest in a portion of an adjacent shopping
center (the "Leasehold Component"). The value of, and the income and expenses
with respect to, the Leasehold Component were excluded from the underwriting of
the Mortgage Loan. In connection with the Borrower's assignment of the Leasehold
Component to a third party or entity and upon not less than 30 days' prior
written request by the Borrower to the lender, the lender must, pursuant to the
related Mortgage Loan documents, release the Leasehold Component from the lien
of the related Mortgage provided that no event of default under the related
Mortgage Loan documents has occurred and is continuing and the Borrower pays all
of the lender's costs and expenses in connection with such release.
Exception 34 - Due-on-Sale:
---------------------------
With respect to the Hillside Xxxxx Apartments Mortgage Loan, the related
Mortgage executed by the Borrower and Meridian Hillside, LLC ("Meridian"),
encumbers both the Borrower's leasehold interest and Meridian's Fee Interest in
the related Mortgaged Property and prohibits a transfer of the Borrower's
leasehold interest or a controlling interest in the Borrower, but it does not
prohibit Meridian from directly or indirectly transferring or selling its Fee
Interest. However, pursuant to the terms of the related Ground Lease, Meridian
may not sell, transfer or convey, or cause to be sold, transferred or conveyed,
its Fee Interest except to a purchaser that expressly assumes and agrees to be
bound by the terms of the Ground Lease.
Exception 41 - Servicing Rights:
--------------------------------
Servicing rights have been granted as follows:
Loan Servicer
---- --------
Euclid Xxxxxxx Apartments Capstone
Swatara Retail Center Capstone
Abbeville Shopping Center Collateral
Xxxxx Xxxxxxx Apartments Collateral
East Broadway Retail Shops Collateral
Greentree Apartments NC Collateral
Hillside Xxxxx Collateral
Lion's Way Apartments Collateral
0000 Xxxxx Xxxxxx Xxxxxxx
Attic Self Storage-Monroe Midland
Best Western Seattle Midland
Blue Lake Village MHC Midland
Brooklet Service Center Midland
Casa Grande Apartments Midland
Classic Storage Station Midland
Corrado Medical Building Midland
Dallas Retail Center - Dallas, OR Midland
Quail Street Office Midland
Southpoint Self-Storage Midland
Stadium Place Office Midland
Storage Depot - McAllen Midland
The Xxxxxxxx Apartments Midland
Twin Creeks Apartments Midland
Vienna Marketplace Midland
Westwinds Business Park Midland
Winston Apartment Complex Midland
Exception 42 - Recourse:
------------------------
With respect to the Swatara Retail Center Mortgage Loan, a limited
liability company and an individual are the guarantors, and the individual's
obligations are limited to a guaranty of the liquidity of the limited liability
company up to $5,000,000.00.
With respect to the Southpoint Self-Storage and 0000 Xxxxx Xxxxxx Mortgage
Loans, the individual guarantors are not obligated to indemnify the mortgagee
for damages resulting from violations of any applicable environmental laws, but
each related Mortgaged Property is covered by an environmental insurance policy.
--------------------------------------------------------------------------------
The following mortgage loans are the Bridger Mortgage Loans:
Twin Creeks Apartments
Best Western Seattle
Corrado Medical Building
Euclid Xxxxxxx Apartments
Swatara Retail Center
Westwinds Business Park
Vienna Marketplace
Southpoint Self-Storage
Lion's Way Apartments
0000 Xxxxx Xxxxxx
Xxxxxxxx Service Center
Blue Lake Village MHC
Greentree Apartments NC
Casa Grande Apartments
Dallas Retail Center - Dallas, OR
Quail Street Office
Winston Apartment Complex
The Xxxxxxxx Apartments
Stadium Place Office
Classic Storage Station
Storage Depot - McAllen
Hillside Xxxxx
Abbeville Shopping Center
Xxxxx Xxxxxxx Apartments
Attic Self Storage-Monroe
East Broadway Retail Shops
