EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is dated and effective as of April 14, 2004, between Bear ▇▇▇▇▇▇▇ Commercial
Mortgage, Inc., as seller (the "Seller" or "BSCMI") 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").
The Purchaser intends to transfer or cause the transfer of (i)
the Mortgage Loans and (ii) certain mortgage loans transferred by Bank of
America, N.A. ("Bank of America") to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between Bank of America
and the Purchaser, 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 ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and/or ▇▇▇▇▇'▇ Investors
Service, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of April 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, ▇▇▇▇▇▇▇ & Co Inc. ("BSCI"),
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ Sachs") and Wachovia Capital Markets, LLC
("Wachovia") (collectively, the "Underwriters") pursuant to an underwriting
agreement, dated as of April 1, 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 thereof (together the "Initial Purchasers"), pursuant to a
certificate purchase agreement dated as of dated April 1, 2004 (the "Certificate
Purchase Agreement"), among BACM, Banc of America and BSCI. The Registered
Certificates are more fully described in the prospectus dated April 1, 2004 (the
"Basic Prospectus"), and the supplement to the Basic Prospectus dated April 1,
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 that certain private
placement memorandum dated April 1, 2004 (the "Memorandum"), as each 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 Memorandum and
certain other disclosure documents and offering materials relating to the
Certificates, pursuant to an indemnification agreement, dated as of April 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 $366,379,330.43, 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
April 14, 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.
(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) [Reserved].
(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 corporation, duly authorized, validly
existing and in good standing under the laws of the State of New York.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under
this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into
and perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Seller's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the Seller's knowledge, threatened
against the Seller which if determined adversely to the Seller would
prohibit the Seller from entering into this Agreement, or in the Seller's
good faith and reasonable judgment, would be likely to materially and
adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and the terms of the Pooling and Servicing
Agreement; provided that if the Seller certifies in writing to the Purchaser (i)
that any such Material Breach or Material Document Defect, as the case may be,
does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the REMIC
Provisions, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being corrected or cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (as defined below), then
the Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such correction or cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (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 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 Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property
or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any
remedies against the other's Primary Collateral (as defined below), but each is
permitted to exercise remedies against the Primary Collateral securing its
respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties,
including, with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral. If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by
such party, then both parties shall forbear from exercising such remedies until
the related Mortgage Loan documents can be modified to remove the threat of
impairment as a result of the exercise of remedies. "Primary Collateral" shall
mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage
Loan excluding, however, any Mortgage Property as to which the related lien may
only be foreclosed upon by exercise of cross-collateralization of such loans.
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, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m.,
Charlotte time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and
of the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the
Purchaser, the Trustee or a Custodian, or the Master Servicer shall have
received to hold in trust pursuant to the Pooling and Servicing Agreement,
as the case may be, all documents and funds required to be so delivered
pursuant to Sections 2(c), 2(d) and 2(e) hereof;
(iv) [Reserved];
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with, and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or
agreed to pay all fees, costs and expenses payable to the Purchaser or
otherwise pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and
can only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser
and the Seller, and the Pooling and Servicing Agreement, duly executed and
delivered by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer
of the Seller, in his or her individual capacity, and dated the Closing Date,
upon which the Underwriters, and BACM may rely, attaching thereto as exhibits
the organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Secretary of State of the State of New York, 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
Memorandum 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 Memorandum stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, compared the results
of their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and 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., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bear ▇▇▇▇▇▇▇ Commercial Mortgage, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Managing
Director, Commercial Mortgage Department (with copies to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇., Managing Director, Legal Department), 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.
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence
Number Loan Number Originator Property Name Street Address
5 39285 BSCMI ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
6 39287 BSCMI ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Place
7 39677 BSCMI 2300 Grand Concourse 2300 Grand Concourse
8 39284 BSCMI ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
10 39376 BSCMI ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
14 39670 BSCMI ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
15 39674 BSCMI ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
16 39673 BSCMI ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
17 39669 BSCMI ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18 39279 BSCMI ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2773-2779 ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Prairie Mall 125 Eden Prairie Center
25 38460 BSCMI Linden Plaza ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
26.1 38898 BSCMI Shops at Park Place ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
26.2 38898 BSCMI ▇▇▇▇'▇ New Britain 1045 West Main ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ TX-CT Retail Portfolio (Roll Up) Various
27.1 39083 BSCMI ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
27.2 39083 BSCMI Clearwater Crossing ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
27.3 39083 BSCMI Goody's Family Clothing ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
27 39083 BSCMI Inland Georgia Retail Portfolio (Roll UP) Various
28 39444 BSCMI ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ BSCMI ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
35 39085 BSCMI ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
36 39564 BSCMI Crossroads Plaza 1520 Route 38
38 39179 BSCMI ▇▇▇▇▇▇▇▇ Central Shopping Center 651 Highway By Pass 28
39 39086 BSCMI ▇▇▇▇▇▇▇ Hill Center 4051 Stone Mountain Highway
40 39328 BSCMI ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
45 39568 BSCMI Lexington Place ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
46 39219 BSCMI ▇▇▇▇▇▇▇▇ Corners 8610 - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
47 38608 BSCMI ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 9
49 39439 BSCMI Kensington Place 1715 - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
53 39566 BSCMI Houston Square ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
54 38549 BSCMI Eckerd Piedmont ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
56 39463 BSCMI Broward Financial Center ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
58.1 39550 BSCMI ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇.▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
58 39550 BSCMI Evergreen Portfolio C (Roll Up) Various
Sequence
Number City State Zip Code Mortgage Rate (%) AmortizationBasis Original Balance Cut-off Balance
5 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.101% ACT/360 3,617,000 3,604,663
6 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.101% ACT/360 2,465,000 2,456,592
7 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.908% ACT/360 4,210,000 4,205,429
8 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.851% ACT/360 4,112,000 4,101,820
10 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.851% ACT/360 3,981,000 3,971,144
11 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.851% ACT/360 3,692,000 3,682,859
12 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.101% ACT/360 3,654,000 3,641,537
14 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.850% ACT/360 3,347,000 3,343,317
15 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.850% ACT/360 1,969,000 1,966,833
16 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.850% ACT/360 1,150,000 1,148,734
17 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.908% ACT/360 2,936,000 2,932,812
18 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.863% ACT/360 2,914,000 2,910,803
19 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.850% ACT/360 2,230,000 2,227,546
20 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.863% ACT/360 1,989,000 1,986,818
22 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.670% ACT/360 87,000,000 87,000,000
25 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.125% ACT/360 25,250,000 25,164,292
26.1 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,127,000 13,127,000
26.2 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,450,000 6,450,000
26 Various Various Various 4.684% 30/360 19,577,000 19,577,000
27.1 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,900,000 9,900,000
27.2 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,800,000 7,800,000
27.3 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,185,000 1,185,000
27 Various GA Various 5.000% 30/360 18,885,000 18,885,000
28 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.900% 30/360 17,200,000 17,200,000
34 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.940% 30/360 11,457,000 11,457,000
35 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.757% 30/360 10,355,000 10,355,000
36 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.581% 30/360 9,900,000 9,900,000
38 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.940% 30/360 8,600,000 8,600,000
39 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.600% 30/360 7,250,000 7,250,000
40 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.755% 30/360 7,205,000 7,205,000
45 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.960% 30/360 5,300,000 5,300,000
46 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.040% 30/360 5,150,000 5,150,000
47 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.190% ACT/360 4,000,000 3,980,908
49 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.910% 30/360 3,750,000 3,750,000
53 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.740% 30/360 2,750,000 2,750,000
54 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5.170% 30/360 1,100,000 1,100,000
56 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4.836% ACT/360 46,500,000 46,500,000
58.1 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 21,400,000 21,290,008
58.2 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,200,000 11,142,434
58 Various CA Various 5.570% ACT/360 32,600,000 32,432,442
Remaining Primary
Sequence Term to Stated Monthly Administrative Fee Servicing Fee
Number Maturity (months) Stated Maturity Date Due Date Payment Rate Rate
5 57 1/1/2009 1st 19,641 0.032% 0.010%
6 57 1/1/2009 1st 13,385 0.032% 0.010%
7 59 3/1/2009 1st 22,364 0.032% 0.010%
8 58 2/1/2009 1st 21,701 0.032% 0.010%
10 58 2/1/2009 1st 21,010 0.032% 0.010%
11 58 2/1/2009 1st 19,485 0.032% 0.010%
12 57 1/1/2009 1st 19,842 0.032% 0.010%
14 59 3/1/2009 1st 17,662 0.032% 0.010%
15 59 3/1/2009 1st 10,390 0.032% 0.010%
16 59 3/1/2009 1st 6,068 0.032% 0.010%
17 59 3/1/2009 1st 15,596 0.032% 0.010%
18 59 3/1/2009 1st 15,400 0.032% 0.010%
19 59 3/1/2009 1st 11,768 0.032% 0.010%
20 59 3/1/2009 1st 10,511 0.032% 0.010%
22 84 4/1/2011 1st 449,647 0.032% 0.010%
25 57 1/1/2009 1st 137,483 0.072% 0.050%
26.1
26.2
26 55 11/1/2008 1st 76,416 0.032% 0.010%
27.1
27.2
27.3
27 80 12/1/2010 1st 78,688 0.032% 0.010%
28 80 12/1/2010 1st 70,233 0.032% 0.010%
34 80 12/1/2010 1st 47,165 0.032% 0.010%
35 82 2/1/2011 1st 41,049 0.032% 0.010%
36 58 2/1/2009 1st 37,793 0.032% 0.010%
38 80 12/1/2010 1st 35,403 0.032% 0.010%
39 80 12/1/2010 1st 27,792 0.032% 0.010%
40 56 12/1/2008 1st 28,550 0.032% 0.010%
45 81 1/1/2011 1st 21,907 0.032% 0.010%
46 80 12/1/2010 1st 21,630 0.032% 0.010%
47 57 1/1/2009 1st 23,829 0.032% 0.010%
49 81 1/1/2011 1st 15,344 0.032% 0.010%
53 57 1/1/2009 1st 10,863 0.032% 0.010%
54 78 10/1/2010 1st 4,739 0.032% 0.010%
56 59 3/1/2009 10th 190,518 0.032% 0.010%
58.1
58.2
58 79 11/1/2010 1st 186,534 0.032% 0.010%
Remaining Original
Sequence Master Servicing Ownership Amortization
Number Fee Rate Interest Crossed (months) ARD Loan Grace Period
5 0.030% Fee Simple Yes(BACM 04-2-C) 360 No 5
6 0.030% Fee Simple Yes(BACM 04-2-C) 360 No 5
7 0.030% Fee Simple No 360 No 5
8 0.030% Fee Simple No 360 No 5
10 0.030% Fee Simple No 360 No 5
11 0.030% Fee Simple No 360 No 5
12 0.030% Fee Simple No 360 No 5
14 0.030% Fee Simple No 360 No 5
15 0.030% Fee Simple Yes(BACM 04-2-D) 360 No 5
16 0.030% Fee Simple Yes(BACM 04-2-D) 360 No 5
17 0.030% Fee Simple No 360 No 5
18 0.030% Fee Simple No 360 No 5
19 0.030% Fee Simple No 360 No 5
20 0.030% Fee Simple No 360 No 5
22 0.030% Fee Simple No 360 No 0
25 0.070% Fee Simple No 360 No 5
26.1 Fee Simple No
26.2 Fee Simple No
26 0.030% Fee Simple No 0 Yes 5
27.1 Fee Simple No
27.2 Fee Simple No
27.3 Fee Simple No
27 0.030% Fee Simple No 0 No 5
28 0.030% Fee Simple No 0 No 5
34 0.030% Fee Simple No 0 No 5
35 0.030% Leasehold No 0 No 5
36 0.030% Fee Simple No 0 No 5
38 0.030% Fee Simple No 0 No 5
39 0.030% Fee Simple No 0 No 5
40 0.030% Fee Simple No 0 No 5
45 0.030% Fee Simple No 0 No 5
46 0.030% Fee Simple No 0 No 5
47 0.030% Fee Simple No 300 No 5
49 0.030% Fee Simple No 0 No 5
53 0.030% Fee Simple No 0 No 5
54 0.030% Fee Simple No 0 No 0
56 0.030% Fee Simple No 0 No 0
58.1 Fee Simple No
58.2 Fee Simple No
58 0.030% Fee Simple No 360 No 0
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the
representations and warranties attached hereto, the Seller hereby represents and
warrants that, as of the date specified below or, if no such date is specified,
as of the Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in April 2004.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances.
Subject to the completion of all missing information (including, without
limitation, the names of assignees and endorsees and missing recording
information) in all instruments of transfer or assignment and endorsements, and
the completion of all recording and filing contemplated hereby and by the
Pooling and Servicing Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or regulatory
approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in April 2004, without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
April 2004.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if
any, related to and delivered in connection with each Mortgage Loan establishes
and creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are payable to such trustee by the
Seller, the Depositor or any transferee thereof except in connection with a
trustee's sale after default by the related Borrower or in connection with any
full or partial release of the related Mortgaged Property or related security
for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), 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 with respect to
each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by (a) bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and (b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset or rescission available to the related Borrower with respect to
such Mortgage Note, Mortgage or other agreements that would deny the mortgagee
the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating and
obligated to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage 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 Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program. All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit of
the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without 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
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. Under each insurance policy either (A) the
Seller is named as mortgagee under a standard mortgagee clause or (B) the Seller
is named as an additional insured or loss payee, and in each case is entitled to
receive thirty (30) days' prior notice as holder of the Mortgage of termination
or cancellation.
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. To the Seller's knowledge, no Borrower
under a Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency
or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by
the interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of
the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the terms
of such Ground Lease since its recordation, with the
exception of material changes reflected in written
instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a
pro forma title policy or a "marked up" commitment), the
related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is
not subject to any liens or encumbrances superior to, or of
equal priority with, the related Mortgage, other than the
related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable
to, and is thereafter further assignable by, the Purchaser
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it either has
been obtained or cannot be unreasonably withheld); provided
that such Ground Lease has not been terminated and all
amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual
notice that such Ground Lease is not in full force and
effect or that any material default has occurred under such
Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under
such Mortgage Loan. Furthermore, such Ground Lease further
provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of
notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(g) Such Ground Lease, 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 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 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.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (a)
payment in full of all amounts due under the related Mortgage Loan or (b)
delivery of U.S. Treasury securities in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements or (b) the payment of a release price and, if required
by the related Mortgage Loan documents, prepayment consideration in connection
therewith; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan. None
of the release provisions in any Mortgage Loan if exercised would render such
Mortgage Loan an "unqualified 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 (a) no
earlier than two years following the Closing Date and (b) only with substitute
collateral constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Borrower is responsible for the payment of all reasonable costs and expenses
incurred by the related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at
a rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. In connection with the origination of each
Mortgage Loan, the related originator inspected, or caused the inspection of,
the related Mortgaged Property.
33. No Material Default. There exists no material default,
breach, violation or event of acceleration under the Mortgage Note or Mortgage
for any Mortgage Loan, 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, 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 is legal, proper and prudent in all material
respects.
47. Escrows. As of the date of origination, all escrow
deposits and payments relating to a Mortgage Loan were under the control of the
originator and all amounts required to be deposited by each Borrower were
deposited.
48. UCC Financing Statements. UCC Financing Statements have
been filed and/or recoded (or, if not filed and/or recorded, have been submitted
in proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed. Notwithstanding any of the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of UCC Financing Statements are required in order to effect such
perfection.
49. Appraisal. The appraisal obtained in connection with
the origination of each Mortgage Loan satisfied, 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 federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
SCHEDULE IIA TO BSCMI MLPA
Exceptions to Representations and Warranties
REP NO. LOAN NO. LOAN NAME EXPLANATION
------------------------ -------- --------------------- -----------------------------------------
12
Environmental Conditions ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ The Mortgage Loan Seller has required
a secured creditor environmental
38549 Eckerd Piedmont insurance policy for the Mortgaged
Properties or accepted one in lieu of
39083 ▇▇▇▇▇ Plains Village a recourse carve out.
Denbiegh Village
39207 Center
---------------------------------------------------------------------------------------------------------------
14 See Attached Schedule A2 regarding
Insurance Notice Provisions regarding
Cancellation/Termination/Changes to
Insurance Policies
38549 Eckerd Piedmont Borrower is allowed to self insure.
Borrower's parent, Inland Retail Real
Estate Trust, Inc. has guaranteed
losses that would otherwise be
covered by terrorism insurance.
---------------------------------------------------------------------------------------------------------------
21 ▇▇▇▇▇ ▇▇▇▇▇▇ TX-CT Retail Mortgage Loan is an Anticipated
ARD Loans Portfolio Repayment Date Loan.
---------------------------------------------------------------------------------------------------------------
28 38898 Inland TX-CT Retail Mortgage Loan provides for the
Releases/Substitution of Portfolio release of one or more properties
Mortgaged Property upon payment of 115% of the allocated
loan amount with DSCR (2.65x) and LTV
(60%) constraints.
39285 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. Mortgage Loan provides for the
release of one or more properties
upon payment of 115% of the allocated
loan amount with DSCR (1.50x) and LTV
(75%) constraints.
39287 111 Mt. Hope Place Mortgage Loan provides for the
release of one or more properties
upon payment of 115% of the allocated
loan amount with DSCR (1.50x) and LTV
(75%) constraints.
39673 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. Mortgage Loan provides for the
release of one or more properties
upon payment of 115% of the allocated
loan amount with DSCR (1.50x) and LTV
(75%) constraints.
39674 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. Mortgage Loan provides for the
release of one or more properties
upon payment of 115% of the allocated
loan amount with DSCR (1.50x) and LTV
(75%) constraints.
▇▇▇▇▇ ▇▇▇▇▇▇ Georgia Retail Mortgage Loan provides for the
Portfolio release of one or more properties
upon payment of 115% of the allocated
loan amount with DSCR (2.72x) and LTV
(56%) constraints.
39550 Evergreen Portfolio C Mortgage Loan provides for the
release of the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ property upon payment of 125%
of the allocated loan amount with
DSCR and LTV (75%) constraints, and
provides for substitution of the ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ property.
---------------------------------------------------------------------------------------------------------------
34 39550 Evergreen Portfolio C The related Mortgagor has incurred
Due on Sale additional nonaffiliated debt that is
not secured by the Mortgaged Property.
---------------------------------------------------------------------------------------------------------------
42
Non-Recourse Exceptions 38549 Eckerd Piedmont Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
▇▇▇▇▇ ▇▇▇▇▇▇ TX-CT Retail Non-recourse provisions go to the
Portfolio Mortgagor and to Inland Western
Retail Real Estate Trust, Inc., but
not to a "natural person".
▇▇▇▇▇ ▇▇▇▇▇▇ Georgia Retail Non-recourse provisions go to the
Portfolio Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39085 Hillsboro Market Non-recourse provisions go to the
Center Mortgagor only.
39086 ▇▇▇▇▇▇▇ ▇▇▇▇ Center Non-recourse provisions go to the
Mortgagor only.
39179 ▇▇▇▇▇▇▇▇ Central Non-recourse provisions go to the
Shopping Center Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39207 Denby Village Center Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39219 ▇▇▇▇▇▇▇▇ Corners Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39328 Manchester Stop & Shop Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39444 Largo Towne Center Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
39463 Broward Financial Non-recourse provisions go to the
Center Mortgagor and to Investor Properties
Limited and ▇▇▇▇▇ Limited, but not to
a "natural person".
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Non-recourse provisions go to the
Mortgagor and to Inland Retail Real
Estate Trust, Inc., but not to a
"natural person".
40255 Eden Prairie Mall Non-recourse provisions go to the
Mortgagor only.
---------------------------------------------------------------------------------------------------------------
Schedule A2
Property Certificate Liability Certificate
Termination Cancellation Termination Cancellation
Loan ID Loan Name Property Name Language Language
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Will give 30 day notice Endeavor to give 10 day
notice; separate
umbrella certificate to
endeavor to give 30 day
notice
-------------------------------------------------------------------------------------------------------------------------
38549 Eckerd Piedmont Eckerd Piedmont 30 day notice cancellation Endeavor to give 30 day
applies; for BI, will give notice; separate
30 day notice umbrella certificate to
give 30 day notice
-------------------------------------------------------------------------------------------------------------------------
38608 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇ Endeavor to give 30 day Endeavor to give 30 day
notice notice
-------------------------------------------------------------------------------------------------------------------------
38898 Inland TX-CT Retail ▇▇▇▇'▇ New Britain Will give 30 day notice Endeavor to give 30 day
Portfolio notice
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ TX-CT Retail Shops at Park Place Will give 30 day notice Endeavor to give 30 day
Portfolio notice
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Georgia Retail Goody's Family Clothing Will give 30 day notice Will give 30 day notice
Portfolio
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Georgia Retail ▇▇▇▇▇ Plains Village Will give 30 day notice Will give 30 day notice
Portfolio
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Georgia Retail Clearwater Crossing Will give 30 day notice Will give 30 day notice
Portfolio Shopping Center
-------------------------------------------------------------------------------------------------------------------------
39085 Hillsboro Market Center Hillsboro Market Center Will give 30 day notice Endeavor to give 30 day
notice
-------------------------------------------------------------------------------------------------------------------------
39086 ▇▇▇▇▇▇▇ ▇▇▇▇ Center ▇▇▇▇▇▇▇ Hill Center Will give 30 day notice Endeavor to give 30 day
notice
-------------------------------------------------------------------------------------------------------------------------
39179 ▇▇▇▇▇▇▇▇ Central Anderson Central Will give 30 day notice Will give 30 day notice
Shopping Center Shopping Center
-------------------------------------------------------------------------------------------------------------------------
39207 Denbigh Village Center Denbigh Village Center Will give 30 day notice Will give 30 day notice
-------------------------------------------------------------------------------------------------------------------------
39219 ▇▇▇▇▇▇▇▇ Corners ▇▇▇▇▇▇▇▇ Corners Will give 30 day notice Will give 30 day notice
-------------------------------------------------------------------------------------------------------------------------
39279 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39282 ▇▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39283 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39284 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39285 1230 Teller Avenue ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39286 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39287 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Place Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
39328 Manchester Stop & Shop Manchester Stop & Shop Will give 30 day notice Endeavor to give 30 day
notice
-------------------------------------------------------------------------------------------------------------------------
39376 ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
-------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Place Will give 30 day notice Will give 30 day notice
-------------------------------------------------------------------------------------------------------------------------
39444 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Center Will give 30 day notice Will give 30 day notice
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39463 Broward Financial Center Broward Financial Center Endeavor to give 60 day Endeavor to give 30 day
notice notice
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39550 Evergreen Portfolio C ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Endeavor to give 30 day Endeavor to give 30 day
notice notice
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39550 Evergreen Portfolio C ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Will give 30 day notice Endeavor to give 30 day
notice
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Will give 30 day notice for Will give 30 day notice
cancellation/changes; 10
day notice for nonpayment
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Square Will give 30 day notice Will give 30 day notice
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Place Will give 30 day notice Will give 30 day notice
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39669 ▇▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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39670 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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39673 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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39674 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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39676 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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39677 2300 Grand Concourse 2300 Grand Concourse Will give 30 day notice for Endeavor to give 30 day
cancellation/changes; 10 notice
day notice for nonpayment
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40255 Eden Prairie Mall Eden Prairie Mall Endeavor to give 30 day Endeavor to give 30 day
notice notice
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